2010037 (Refugee) - [2024] ARTA 687

2010037 (REFUGEE) [2024] ARTA 687 (26 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2010037

Tribunal:General Member M Brereton
Date:26 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 26 November 2024 at 10:11am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – opposition to the Taliban – Village Defence Committee member – race – Pashtun ethnicity – murders of family members – fear of killing – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
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 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 1 June 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 14 May 2018. The applicant claims to be from the Swat district in Khyber Pakhtunkhwa (KP) and to fear harm from the Pakistani Taliban, or Tehrik-e Taliban (TTP). The delegate did not accept that the applicant had any personal adverse profile and having regard to country information about the situation in Pakistan, refused to grant the visa on the basis that the applicant will not face a real chance or real risk of relevant harm, should he return to Pakistan. The applicant applied to the then Administrative Appeals Tribunal (AAT) for review of that decision.
On 14 October 2024, the 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 appeared before the Tribunal on 19 November 2024, 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.
BACKGROUND
The applicant arrived in Australia in April 2018 as a ship’s crewmember. He deserted his vessel in [City 1] and became an unlawful non-citizen (UNC). He was taken into immigration detention and subsequently applied for the protection visa. The applicant was granted a bridging visa and released from immigration detention.
Evidence before the Department
Protection visa application
The applicant made the protection visa application through his representative. He provided a statement setting out his history in Pakistan and the reason he is seeking asylum. In summary, he claims that he became a person of interest to the TTP in his home area. He received threats and his cousin disappeared. Later his brother-in-law was murdered in Karachi. The applicant believes the TTP will find him and kill him.
Supporting documents
The applicant provided identity cards, proof of his former employment, photographs of an injured person said to be his brother-in-law, and a photograph of a grave said to be his brother-in-law’s.
The interview
The applicant was interviewed by telephone on 14 May 2020. The Tribunal has listened to the recording of that interview.
Summary of the delegate’s decision
The delegate summarised the applicant’s claims as follows:
a.he is from the Swat region of KP, Pakistan. He deserted his ship in [City 1], Australia [in] May 2018. He left Pakistan due to threats from Tehreek-e-Taliban;
b.[in] April 2009, his second cousin named [Cousin A] had a fight with the Taliban, who held him captive for three days and extorted Rs [Rupees] [amount] for his release. His father from [Country 1] paid the fee. On 20 July 2009, when the applicant was onshore in Pakistan, the Taliban told him not to spend time with this cousin. [In] July 2009, they were asked to report to the Taliban office in [Town 1] and were detained for two days, when following a payment of Rs [amount], they were released. In August 2009, his cousin was abducted and is still missing. Following this incident, the applicant went to the Taliban commander in [Town 1] and asked about his cousin. He was told that if his cousin had disobeyed them, then he would be killed;
c.in 2010, when he returned from ship, the Pakistani Army in Swat checked his Merchant Navy or Seafarer’s ID card. Due to his position, they held him in high esteem and asked him to assist them against the Taliban.
d.[in] January 2011, a letter demanding all his earnings or else to face the consequences, was thrown into his house. Following this, the applicant remained with friends and family in Islamabad and Karachi. On 14 April 2012, he received another threat letter that he would be killed, following which he went and remained in Karachi;
e.whenever he was on a break from his shipping work, he returned to Swat and helped the Pakistani Army. The army left their village in August 2017. He assisted the army throughout and whenever he was on a break and in Swat;
f.[in] September 2017, he received a further threat, claiming this was the last warning before they would kill him. He went back to Karachi to join the ship. However, he was required to renew his passport from Swat region. [In] December 2017, he received another threat letter listing their grievances against him. He went back to Karachi and re-joined the ship.
g.he is on the enemy list of the Taliban. They did not kill him as they wanted some financial benefits from him before they did so. Although peace had been restored in Swat region, Taliban operatives still existed. A person was not safe from the Taliban no matter which part of the country they went to. The army had left the applicant’s region and would not be able to protect him from the Taliban.
The delegate accepted the following:
a.the applicant is a Pashtun, Sunni Muslim from Swat district, Pakistan;
b.the applicant was part of a ship’s crew and consistently worked on ships from 2001 to 2018, when he deserted ship in Australia;
c.the applicant has travelled multiple times to Australia since [April] 2006 with his last arrival being [April] 2018, on ZM 988- Maritime Crew visas;
d.the applicant has a wife and [number] school-going children residing in his village in Swat district; and
e.the applicant’s brother-in-law was killed in Karachi in 2019.
The delegate did not accept:
a.the applicant has an adverse personal profile of interest with anyone in Pakistan;
b.the applicant was individually and specifically targeted by the Taliban or any other extremist group in Pakistan;
c.the applicant assisted the Pakistani Army in Swat and worked against the Taliban;
d.the applicant fled Pakistan due to direct threats to him;
e.the applicant’s cousin’s circumstances including his cousin’s disappearance had anything to do with the applicant;
f.the applicant’s brother-in-law’s (sister’s husband’s) death had any relation to the applicant or his circumstances; and
g.the applicant was politically active in Pakistan or that such a claim was implied.
The delegate considered country information about the situation in Pakistan and KP. The delegate noted that things had improved and ultimately was not satisfied that the applicant has any particular adverse or political profile or will face a real chance or real risk of relevant harm.
Evidence before the Tribunal
Pre-hearing submissions
On 13 November 2024, the applicant provided pre-hearing information, comprising:
a.Applicant’s statement dated 12 November 2024.
b.Letter in support from the head of the village Peace Committee.
c.Medical information.
d.Copy of identity card said to be the applicant’s sister’s identification and marriage details.
e.A certificate dated 2021 which appears to relate to the applicant’s work in Australia.
The hearing
The applicant and his representative attended the hearing. At the start of the hearing the Tribunal confirmed with the applicant and the interpreter that they were able to understand each other’s particular Pashto dialects.
The applicant’s oral evidence is considered below.
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 TTP and the Pakistani authorities. 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 citizen of Pakistan and has provided documentary evidence to the Department in support of this claim. There is no information before the Tribunal indicating that he 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.
There is nothing in the information before the Tribunal that raises any concerns with the applicant’s claimed ethnicity, religion, and home location. The Tribunal finds that he is a Sunni Muslim and a Pashtun from KP and that his home village is in the Swat District.
Country Information – Swat District
The Tribunal has considered the applicant’s claims against the background information set out below.
Background - the conflict in Swat
Prior to the Partition of India which led to the creation of Pakistan in 1947, the British Indian Empire recognised Swat as a princely state known as Yousafzai State of Swat (or Dera Yusufzai). Yousafzai denoted the predominate Pashtun tribe of the area. Between 1947 and 1969, the Swat District was administrated by the Dominion of Pakistan (which became the Islamic Republic of Pakistan in 1956). Leaders of Swat continued to enjoy considerable autonomy from the central Pakistani state and resistance to Pakistani rule continued after independence. In 1950, guerrillas led by Mirzal Khan announced the creation of Pashtunistan as an independent nation, but by 1969, the popularity of independence declined, and the semi-autonomous Federally Administered Tribunal Areas (FATA) were established. In 2018, the FATA was merged with neighbouring KP Province.
The TTP in Swat emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989. Maulana Fazlullah assumed control of the TNSM in 2001 and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands. When the TTP was formed in Waziristan in the FATA, Fazlullah was named emir (leader) of the Swat Taliban. Although the TTP and TNSM were not operationally linked at that time, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.[1]
The TNSM attacked targets in Swat which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, artists,[2] and used beheadings to advertise its strength.[3] The KP Provincial Government entered into ceasefire agreements with the TSNM from 1994,[4] however, these did not lead to a lasting peace. Since 2005, the Taliban in Afghanistan and their sympathizers and allies within Pakistan, who had been protégés of the Pakistani state, turned upon their previous benefactors. The result was and continues to be a series of bombings across urban and rural Pakistan, targeting state infrastructure, civilians, and the de-facto, if seemingly temporary, control over parts of Pakistani territory by the militia movement in the FATA and the settled districts of Swat, Malakand and to a lesser extent Dir.[5]
The TTP gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence and displacement of the local population.[6] Fazlullah effectively set up a parallel government in Swat controlling the area until 2009 when he and his group were defeated by a military offensive.[7] The Pakistani army offensive against the TTP in Swat commenced in May 2009. During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 TTP militants. Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people (IDP) in the month after the offensive commenced.[8]
Information before the Tribunal indicates that despite the defeat of TTP militants in Swat in 2009, sporadic attacks against the military and civilians suspected of cooperating with the military have continued.[9] Historically the TTP imposed bans on all things deemed to be un-Islamic and have targeted security personnel including police, health workers, women, and journalists.[10]
A May 2014 report by the Voice of America noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’, and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[11]
The TTP are also reported to carry out the ‘regular targeted killings of civilians suspected of cooperating with the military’, with one Pakistani journalist based in Mingora claiming that ‘every month, one or two [committee members] are killed by the Taliban’.[12] A September 2014 news article indicates that on 15 September 2014 the head of the Gul Jabba village peace committee was gunned-down in broad daylight near a check-post manned by security personnel, and the same day two peace committee members were killed in [Town 1]. The article comments that over the last three years at least 30 members of VDC or Peace Committees have been gunned down in Swat as an ongoing process of retaliation for helping the authorities arrest militants and destroy their houses. The article concluded that continuing attacks belied the military’s claims of having secured the area from militants, and that experts said the TTP will not be able to regain the hold it had on the Swat valley from 2007-2009 but are likely to restrict their activity to hit-and-run tactics, an ideal guerrilla warfare approach in Swat’s rugged terrain.[13]
An investigative report by Al Jazeera in late 2014, posited that the number of VDC fatalities in the Swat Valley was much higher than reported by the military and other sources, referring to at least 22 VDC members having been killed in targeted attacks across the valley that year alone.[14]
The types of incidents noted above continued to be reported through 2014 into 2022.
Recent Developments
A paper published in July 2024 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.[15]
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 KP, 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 KP’.[16]

This same year PIPS[17] 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.
August 2024 saw an increase in violence in Pakistan. Analysts say 254 people were killed in August alone. This includes 92 civilians and 52 security officials, making it the deadliest month in six years. Militants are especially active in the provinces of KP and Balochistan, both of which border Afghanistan. "The security dynamics have changed with multiple militant attacks across two provinces. The alarming thing is the local public support for the military operation is negligible. Locals are demanding to expel both militants and military. The socio-economic lives are disturbed and there is a trust deficit and insurgents are exploiting these fault lines." [18]
In a report of 10 September 2024, Radio Free Europe reported that the TTP has regained a foothold in northwestern Pakistan and is “imposing its brutal rule on hundreds of thousands of people”. Assassinations, kidnappings, extortion, and harassment dominate daily life in some areas. The TTP often rules during the night. After dark, government forces frequently retreat to their posts and bases, and many civilians refuse to venture outside for fear of the militants, locals say. Pakistan earlier this year said the military would launch a new offensive to root out militants in the region. The planned military operation has been fiercely opposed by locals in KP, the scene of numerous offensives that killed thousands and uprooted millions of civilians in the past.[19]
On 20 September, six security forces personnel were killed, and 11 others injured when the TTP attacked a check point in KP.[20] On 22 September 2024, extremists believed to be TTP detonated a roadside bomb in Swat, targeting a police convoy.[21] (Later reporting suggests the TTP has denied involvement in that attack).
On 7 November 2024, the media reported bomb and mortar attacks in the South Waziristan district and other parts of KP.[22] No one had claimed responsibility, but it was reported that the TTP had stepped up its attacks in the region since the Afghan Taliban had seized power there in 2021. The attacks appear to have targeted security forces but also killed two children.
On 22 November 2024, the media reported attacks on civilian passenger vehicles in KP that killed at least 38 people.
Tribal and family feuds are common in Sunni-majority Pakistan, where the Shiite community has long suffered discrimination and violence. But KP province has witnessed a significant rise in violence in recent months.
The independent Human Rights Commission of Pakistan (HRCP) urged authorities this month to pay "urgent attention" to the "alarming frequency of clashes" in the region, warning that the situation had escalated to "the proportions of a humanitarian crisis".
The group said more than 70 people were killed in intermittent clashes since July.
"The fact that local rival groups clearly have access to heavy weaponry indicates that the state has been unable to control the flow of arms into the region," HRCP said in a statement.
"The protracted trauma and violence … the residents have been subjected for over a year must not become the new normal," it said.
Thursday's attacks come just days after at least 20 soldiers were killed in separate incidents in the province.[23]
The Tribunal considers that the country information indicates that despite the military gaining control of Swat in 2009, and the resultant improvements in the overall security situation, the TTP has continued to launch attacks against military targets, anti-TTP political activists, and those they consider support the Pakistani Army and government. The Tribunal finds that, given the nature of the conflict in Swat and the role of some civilians in assisting the Pakistani military to identify TTP members and supporters, and the consequences for those identified, the TTP (and, presumably, family members of local TTP) had, and continues to have, both a desire and an ability to harm those imputed of being supportive of the military.
Applicant’s Claims – VDC/Imputed Support to the Military
The applicant’s claimed history in Pakistan is set out above. Of particular relevance is his claim to have assisted the Pakistani Army in operations against the TTP. The delegate did not accept this aspect of the applicant’s claim.
In his statement to the Tribunal, the applicant says that from 2009, he assisted the army through a VDC. He asserts that he participated in night watches and guiding the Army to TTP suspects. At the hearing he explained that the soldiers posted to the area were from other regions and had no local knowledge, so they relied on the local VDC to assist. The Tribunal asked if the applicant had been involved in gun battles or other violence and he said no, but he was present when the Army entered and searched suspects’ homes. The applicant has provided a letter of support purporting to be from a member of the local area VDC. The author states that they have personal knowledge of the applicant and his activities, and purports to confirm the applicant’s involvement in identifying TTP buildings and personnel. The author states that many peace committee members have been “martyred” in Swat.
It is difficult to determine the level of the applicant’s personal involvement with the VDC. The Tribunal considers it is to his credit that he has not sought to exaggerate his involvement or duties and has been open from the start that he has not been involved in gun battles or other violent incidents. Nevertheless, the applicant asserts that he was seen with the VDC and the Army. He told the Tribunal that this is why the TTP sees him as a member of the VDC. The Tribunal considers that any imputation that he has assisted the military will be dangerous to him, regardless of whether or not he actually did so. Having regard to all these factors, the Tribunal accepts that the applicant has assisted his local VDC at various times in Pakistan. The Tribunal accepts that the applicant has been seen with the VDC and the Army and is satisfied that there is a real chance he will be imputed as being opposed to the TTP.
The Tribunal takes into account that the applicant has not been in KP since leaving Pakistan in 2018 but, noting the continued cycles of violence and the resurgence of the TTP, the Tribunal finds that there is a small, but none the less real, chance that the applicant will be identified and harmed by the TTP 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 profile as a member of the VDC and supporter of the army and, by default, as an imputed opponent of the TTP. 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.
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 TTP and other extremist attacks have occurred throughout Pakistan. The applicant claims that his brother-in-law was a member of the Awami National Party and was opposed to the TTP. He was murdered in 2019 in Karachi and the applicant believes this was a TTP attack. When asked why he thought that the TTP was responsible, he said that his brother-in-law was targeted personally and the only enemies that he had were TTP members. The Tribunal is not able to reach a definitive conclusion as to the perpetrators, but it is a least plausible that the motive was linked to insurgent violence.
The Tribunal notes 2024 reporting that 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.[24] The PIPS report noted above also indicates that the TTP and its allies and affiliates continue to carry out attacks across Pakistan.[25]
The Tribunal asked the applicant about living in another part of Pakistan and he said that he fears that the TTP and related extremists will be able to find him and harm him. He also said that he will not be able to return to his maritime employment because he is a ship’s deserter. He said that he will not be able to support his family, which includes his disabled father, outside Swat if he returns. The applicant also said that Pashtuns are treated with suspicion and hostility outside their home areas. He said that Pashtuns are suspected of being involved with terrorism and if he relocates to another area, he will need to have two witnesses in the new area who know him and who can offer references for him. He does not have anyone who can do this.
The Australian Department of Foreign Affairs and Trade (DFAT)[26] reports that the Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns traditionally live among their own tribes and sub-tribes in KP and the former FATA, though many migrate to urban areas.
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.
DFAT also reports that across Pakistan, ethnic stereotyping, and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, “the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.” In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. 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.
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.
In April 2024, the United States Department of State reported that (emphasis added):
Pashtuns were targeted and killed by both antistate militants and security forces because of their political affiliation or beliefs, antimilitancy stance, or criticism of the government. PTM leaders and activists claimed they had been threatened, illegally detained, imprisoned without trial, banned from domestic and international travel, and censored. Anti-Taliban Pashtun activists and political leaders were targeted and killed, allegedly by militants, in Sindh, Balochistan, and KP. Pashtuns from the former FATA complained they were frequently profiled as militants, based on their tribe, dress, appearance, or ancestral district of origin. Pashtun activists claimed that they were subject to military censorship and that sedition laws were used to stifle PTM and other Pashtun critics of the government.[27]
A recent media article by a freelance journalist based in Peshawar suggests that this suspicion and discrimination against Pashtuns is increasing. The author also refers to the Pashtun Tahaffuz Movement (PTM), a nonviolent organisation that advocates for Pashtun rights, which is being met with increasing hostility from the government. The author notes that the increasingly strained relationship between the Pakistani Army and the Afghan Taliban has placed Pakistani Pashtuns in a precarious situation, being viewed by the Army as working for the interests of the Afghan Taliban.[28]
The Tribunal has carefully considered the above information together with the applicant’s particular and personal profile. The Tribunal finds that the applicant will face a real chance of serious harm from the TTP or its affiliates if he was to relocate within KP or to Karachi.
The chance of harm from the TTP may be reduced by relocation to other, non-Pashtun majority areas such as Islamabad, but the Tribunal accepts that the applicant will have no family support and limited tribal support in such areas. The information above indicates that Pashtuns in these areas (particularly strangers) are treated with suspicion by the local population, and have reported facing profiling, harassment, and blocking of official documents. The Tribunal finds that the applicant will struggle to obtain employment and accommodation and to support himself, let alone his family, in major cities and outside of Pashtun tribal areas. These difficulties will result from official and societal discrimination.
Having regard to everything noted above, the Tribunal finds that there is a real chance that the applicant will face discrimination, profiling, restrictions to his liberty, significant economic hardship, and other conduct that can be considered serious harm because of his ethnicity as a Pashtun and the suspicion that falls on Pashtuns outside their tribal areas. 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. The Tribunal finds that the applicant cannot avoid or mitigate facing serious harm by moving to another part of 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 and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing:  19 November 2024
Representative:  Mr Fayyaz Ali Shah (MARN: 1570276)
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.
…

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

Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March 2012; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal, Vol. 28.

[3] Mustafa D and Brown K E; Dawn, ‘Taliban behead two government officials in Swat’ 3 May 2009.

[4] Khattak.

[5] Mustafa, D & Brown, K E.

[6] Khattak.

[7] Siddique, pp. 39-43; Kronstadt, K.A., ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June 2010, p. 19.

[8] Macey, J., ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June 2009, See also See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at ‘With Taliban’s revival, dread returns to Swat’, New York Times, 26 July 2014, available at 'Former TTP spokesman Ehsanullah Ehsan allegedly threatens Malala on Twitter', Dawn (Pakistan), 17 February 2021; 'Exclusive: Pakistani Taliban down but not out, says ex-spokesman', Asad Hashim, Aljazeera, 2 April 2020; 'The Evolution and Potential Resurgence of the Tehrik-i-Taliban Pakistan', United States Institute of Peace, 11 May 2021, p. 12; 'Exclusive: Pakistani Taliban down but not out, says ex-spokesman', Asad Hashim, Aljazeera, 2 April 2020.

[11] Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, What’s keeping the military in Pakistan’s Swat Valley?’, IRIN, 30 October 2013, < ‘With Taliban's Revival, Dread Returns to Swat Valley’, The New York Times, 26 July 2014.

[14] Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014, 'Pakistan and the Taliban: A Strategic Asset Turned Strategic Predicament', Abdul Rehman and Wang Mingjin, Asia Policy, 30 July 2024,

[16] Office of the Commission General for Refugees and Stateless Persons (Belgium), 'Pakistan Security Situation 2024', 25 May 2024, 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,

[18] Pakistan: Why are militant attacks on the rise? – DW – 09/12/2024.

[19] ‘No One is Safe: Life Under the Rule of the Pakistani Taliban’, Radio Free Europe, 10 September 2024, 6 personnel killed, 11 injured in terror attack in Pak's Khyber Pakhtunkhwa | World News - Business Standard.

[21] Deadly bomb hits Pakistan police escorting convoy of foreign diplomats.

[22] ‘Bomb and mortar attacks in northwest Pakistan: four security officers and two school children killed’, The Hindu, 7 November 2024, ABC News, 22 November 2024, Dozens killed and injured in shooting attacks in Pakistan's north-west - ABC News

[24] Office of the Commission General for Refugees and Stateless Persons (Belgium).

[25] PIPS, 8 May 2024.

[26] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Pakistan’, 25 January 2022, at 3.13-3.18.

[27] United States Department of State, 'Country Reports on Human Rights Practices for 2023 - Pakistan', 22 April 2024, The Citizen, ‘A Tale of Struggle and Resilience for Pashtuns in Pakistan’, 17 February 2024,

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