2011739 (Refugee)

[2023] AATA 4400

2011739 (Refugee) [2023] AATA 4400 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2011739

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Mark Bishop

DATE:3 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 03 October 2023 at 2:15pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – race – Pashtun – political opinion – opposition to the Pakistan Taliban – Village Defence Committee informant – Awami National Party – particular social group – physical disability – physical assault – killing of relatives – Taliban resurgence – effective state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

FCS17 v Minister for Home Affairs [2020] FCAFC 68

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan applied for the visa on 14 June 2018. The delegate refused to grant the visa.

3. The applicant provided evidence[1] of being in constant pain and discomfort and current use of a wheelchair and assistance from a support person for mobility.   Post written application[2] from the applicant the Tribunal resolved the review application on the papers.

   [1] See page 1 of covering letter and relevant medical advice attachments to legal submissions in Doc ID [number]

   [2] See page 1 of covering letter to legal submissions in Doc ID [number]

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Geographic and Demographic Matters

11. Tribunal researches disclose the following:

    ·Pakistan includes four provinces – Sindh (capital: Karachi), Punjab (capital: Lahore), Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas; capital: Peshawar) and Balochistan (capital: Quetta). Islamabad has its own status as a 'Federal Capital Territory'.

    ·All four provinces have their own elected provincial assemblies and governments. There are 170 districts in Pakistan.  Khyber Pakhtunkhwa is divided into 7 Divisions and 39 districts inclusive of the applicant’s District of Swat.  

    [Village 1], Swat

    ·The applicant comes from [Village 1], in the Swat District of the Khyber Pakhtunkhwa Province in Pakistan. [Village 1] is considered a historical town in the Swat District with a population of approximately [amount].  The main demographic of people in [Village 1] are Pashtuns.

    ·[Village 1] is situated in the mountains about [distance] from [two named towns].  It is approximately [distance] from the Pakistani capital of Islamabad,  and approximately [distance] from the KPK capital of Peshawar.

    Swat Valley

    ·The Swat valley is located in the Swat District Northwest Frontier Province of Pakistan. At the time of the 2017 census the district had a population of 2,308,624, of which 1,171,947 were males and 1,136,545 females. Rural population was 1,612,803 (69.86%) while the urban population was 695,821 (30.14%).

    ·Swat is mostly inhabited by Pashtuns who make up 90.78% of the population. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Applicant’s Claims for Protection (Part 4 of Decision Record)

12. The delegate’s decision  included a summary of claims from the applicant’s PV application as follows:

    ·The applicant is [an age]-year old Sunni Pashtun, single male, born and raised in the village of [Village 1], [Town 1], Swat District, Khyber Pakhtunkhwa (KBK) Province, Pakistan. His father is a retired [occupation 1] and one of his brothers works as [an occupation 1] for a [Country 1] based [business 1]. His family owns and cultivates 3 hectares of land in [Village 1] and employs farm workers. His immediate and extended family members are members of the Awami National Party (ANP). His immediate and extended family members continue to reside in [Village 1], village to date.

    ·He had completed [level] of education in [specified year]. In [year], he was admitted in the [Course 1] at [a named] College, in [Town 1] but could not continue his studies due to security situation. In 2011 he had completed a 6 month [occupation 1] course ([between specified dates]) at [College 1] in Lahore. In 2014, he joined the [Employer 1], based in Karachi and had been employed with the company on a yearly contract basis. Between 2014 and 2015, he travelled to [specified countries].

    ·He had joined the Pakthun Student Federation (PSF), a student branch of Awami National Party (ANP), actively promoting education and opposing the Taliban.

    ·He attended a meeting in his village [in] September 2009, in order to pledge the full support for the Army in eradicating the militants from Swat. He was appointed as the head of the Village Defence Committee (VDC) in [Village 1]. He had patrolled his village at night with five other members from 8 pm until 8 am, two days a week. He had also prepared patrol rosters for the area. The local VDC consisted of 12-13 members in total with one representative from each street. There were [number] houses in his street, and he identified 11 Taliban houses, which resulted in the arrest of Taliban members by the Army.

    ·He was shot in Karachi in May 2012, whilst going to a bazaar with his [uncle], by two unidentified persons on a motor bike. Whilst his uncle was killed in the ambush, he managed to escape. The matter was widely reported in local papers.

    ·He went to [Country 2] as [an occupation 1] for six months in 2014. He returned to his village in Swat in March 2015.

    ·He received a threat letter from the Tehrek-e-Taliban upon his return in March 2015, warning him that they would punish him for helping the Army.

    ·He was beaten with sticks by some masked people in April 2015. He was brought home unconscious by the villagers and taken to a local doctor who referred him to undertake an MRI, which showed that his lower back has been damaged as a result of the beating.

    ·His [Uncle A], a VDC and ANP member, was killed in May 2016 in [a named village] in Swat.

    ·He received a second threat letter from the Taliban in October 2017, warning him that he would be made disabled for the rest of his life.

    ·He received the second threat letter; he went to Karachi and applied for [an occupation 1] deployment. He was deployed on [an overseas assignment] in February 2018. He flew from [a specified] Airport to [Country 3] and then commenced [travel] via [Country 1] to Australia, arriving at [Adelaide] [in] April 2018.

    ·He fears being targeted by the Taliban militants still active in Pakistan, as there is no safe place throughout Pakistan for him to relocate.

    ·He fears that the authorities, including the security forces and the police would not be able to provide any protection, as he had previously reported his beating incident in 2015 to both the police and the army personnel, yet they did not provide any assistance.

    Post Interview Submission

    The applicant provided a Post Interview Submission on 3 July 2020, which as summarised by the delegate stated:

    ·He worked as [an occupation 1] from September 2014 until April 2018, and that he was registered with [Employer 1] in Karachi as [an occupation 1], doing [specified] duties. He was referred to [a business 1], called [Business 1] for the first job and then to a [different] company for his second and last job.

    ·He did not [specifically leave his assignment], he was taken to a hospital in Adelaide with permission of the [manager] and then using that opportunity he escaped and sought protection.

    ·He was chosen in 2009 as a Head of VDC (Village Defence Committee) in his locality because he was educated and outspoken.

    ·He escaped near death beating at the hands of the extremists, and he would still be targeted and killed by the Taliban on return. He has lost [two] uncles.

    ·Relocation within Pakistan is not feasible as the militants, would be able to locate him anywhere. Having no immediate familial or other support networks in other cities, he would not be able to subsist, given extremely low employment prospects, limited access to public services, difficulties finding shelter and having no or limited access to adequate health services, required for his treatment.

    ·The Psychological Report dated [in] July 2020, in summary, states that the applicant is showing symptoms of post-traumatic stress, anxiety and depression, relating to the ongoing danger in Pakistan and the Taliban’s intent to kill him. He requires access to ongoing trauma counselling, in order to be given the opportunity to further process his experiences upon his daily functioning. Without such, it is probable that his mental health would deteriorate significantly.

    ·The letter of support from his current GP at [Medical Centre 1] in Victoria, and a letter from an Orthopaedic Surgeon at [a named] Hospital in Melbourne, refer to the applicant’s treatment of epidural steroids, epidural injections, the physiotherapy, and hydrotherapy.

    Delegate’s Findings of Fact (Part 5 of Decision Record)

    The delegate made the following findings of fact in the decision record :

    ·The delegate accepted that:

    ·He is a Pashtun, Sunni Muslim born and raised in [Village 1], [Town 1], Swat District, Khyber Pakhtunkhwa (KBK) Province, Pakistan.

    ·He was registered with [Employer 1], based in Karachi and consistently worked [on assignments] from 2014 until 2018.

    ·He [left an assignment] in [Adelaide], SA [in] April 2018

    ·He joined a Village Defence Committee (VDC) in September 2009 in [Village 1], [Town 1] Swat District, Khyber Pakhtunkhwa (KBK) Province, Pakistan.

    ·He is showing symptoms of post-traumatic stress, anxiety and depression, and he suffers from chronic back pain.

    The delegate did not accept that:

    ·the applicant has an adverse personal profile of interest with anyone in Pakistan

    ·the applicant was individually and specifically targeted by the Taliban or any other extremist group in Pakistan

    ·the applicant fled Pakistan due to direct threats to him

    ·the applicant’s uncles killing in Pakistan had any relation to the applicant or his circumstances

    Evidence provided to date

    The applicant provided the following evidence to the Department:

    ·A copy of his Pakistani Passport

    ·A copy of his Computerised National Identity Card (CNIC)

    ·Statement of Claims

    ·Post Interview Submission dated 2 July 2020

    ·Psychological Report by [a named agency] dated [in] July 2020

    ·VDC Membership Card

    ·ANP Membership Card

    ·Applicant Security Pass

    ·Psychological Report by [a named] Psychologist dated 18 June 2019

    ·Referral letter from [a named] Physiotherapist dated 25 June 2019

    ·Support letter from [a named] VDC Member

    ·Support letter from [name] (President of [Village 1] VDC) dated 9 July 2019

    ·Support letter from [a named member] (ANP, Swat) dated 2 August 2019

    ·Support letter from [name] (ex-MPA, ANP Swat) dated 4 March 2019

    ·Support letter from [name] (resident of [Village 1])

    ·Support letter from [name] (resident of [Village 1])

    ·Support letter from [name] (applicant’s father) 

    ·Support letter from [name] (applicant’s mother)

    ·Applicant’s Patient History Report between 1/10/2018 and 28/5/2020

    ·Evidence of applicant’s medical treatment in Swat

    ·English translations of newspaper articles about recent killings of the VDC members in Pakistan 

    ·First Information Report dated 31 May 2016

    ·First Information Report dated 16 May 2012

    ·National Identity Card of [Person A]

    ·Police Report and translation dated [in] May 2012

    ·Letter from [a named] Orthopaedic Surgeon dated 3 June 2020

    ·Results of applicant’s CT Scan dated [in] February 2019

    ·Support letter by [Doctor A] (GP)

    Protection Visa Interview

13. An interview was held on 9 June 2020 at 11:00 am via telephone. The applicant attended via telephone at his representative’s office. The delegate  conducted the interview from the Department’s Sydney office. A Pashto speaking interpreter was used during the interview. In addition to the summary of the PV interview provided by the delegate and summarised above the Tribunal provides the following more detailed summary:

    Discussion regarding joining the PSF

    D: When did you join the Pakhtun Student Federation (PSF)?

    [THE APPLICANT:] 2007 in college.

    D: 2007?

    [THE APPLICANT:] Yes

    D: But you were not at college at the time, you just, you entered the college in 2009

    [THE APPLICANT:] My college started in 2007 when I started doing my [unclear] which is [a specified level], so that’s the college year when I joined the PSF. In 2009 I got admitted into university doing my [Course 1]

    D: Okay, so in high school, in other words. You joined the PSF at the high school?

    [THE APPLICANT:] Yes

    Discussion regarding applicant’s  membership of VDC

    D: Now you claim being a member of the village defence committee. When did you join the village defence committee?

    [THE APPLICANT:] In 2009

    D: What month and what day, do you remember?

    [THE APPLICANT:] It was August 2009 after the operation

    D: Here you said September, so you say August here?

    [THE APPLICANT:] It started in end of August

    D: But at the time you were still doing your diploma away from your village.

    [THE APPLICANT:] I was in my home village in 2009

    D: So, you were back in your village, yes?

    [THE APPLICANT:] Yes in 2009 I was in my village.

    D: How many members in the committee?

    [THE APPLICANT:] In the committee from each street there was one representative from each street.

    D: So altogether how many?

    [THE APPLICANT:] I became the head of [number] other people in my street.

    D: Altogether how many? [Number]?

    [THE APPLICANT:] Yeah, in total there were [number] houses

    D: And that’s one street, is it?

    [THE APPLICANT:] Yeah, so in my street there were [number] houses, and I was the head of those [number] households

    D: Okay, so total of [number] houses. So, each one had one village – so it’s like how is it organised? The local council or how is it organised?

    [THE APPLICANT:] So, the military has organised the committees through their operations when people have returned back to the villages. So, the army has arranged these VDCs

    D:  Did you receive any training? When and what training did you receive as part of your VDC duties?

    [THE APPLICANT:] We have not been provided any training

    D: No training? What about weapons, did you receive any weapons?

    [THE APPLICANT:] Yes, we were given a gun and the army has shown us how to use it and the army would guide us and we would act on that guidance

    D: So, what weapons did you have?

    [THE APPLICANT:] I was given a pistol. I became the head of the VDC. So, the army has made the announcement and all the households come to the grounds and there the announcement was made. And then the army has demanded them to [unclear]

    D: Three what?

    [THE APPLICANT:] Three lists

    D: So, hang on I’m very confused. What are you talking about? The question was what did you get, what weapons did you have? And you answered you had a pistol, gun, yes? Anything else?

    [THE APPLICANT:] Yep, nothing else.

    Discussion regarding the applicant’s role/duties in the VDC

    D: Okay, and when – pay attention and answer the questions – when, where, and how did you assist the Pakistani army yourself?

    [THE APPLICANT:]  I have assisted them in 2009, the army

    D: 2009, do you remember the months?

    [THE APPLICANT:] In August I have started assisting the army

    D: Okay so that’s when. The next question is where?

    [THE APPLICANT:] In [Village 1]

    D: And how?

    [THE APPLICANT:] [unclear] assist the army by providing information and make things clear to them.

    D: No, no, no, just talk in very simple terms how did you assist the army?

    [THE APPLICANT:] So, the assistance that I have provided to the army, beginning when I became the VDC head, I had to prepare three lists of the Taliban in my village, so their houses, their name, their number. So, I have prepared that as well.

    D: So, three lists of Taliban houses in your village, right?

    [THE APPLICANT:] In my street, because I was the head of my street. So, from my street I have provided the list.

    D: Okay, so in your street there were quite a number of Taliban houses?

    [THE APPLICANT:] In my street there were 11 houses of Taliban

    D: But my understand is that in those places everybody is Taliban, every household has Taliban members.

    [THE APPLICANT:] No there were only 11 houses of Taliban in my street

    D: So, were you involved in any combat with the Taliban?

    [THE APPLICANT:] No, I had not fought against the Taliban. I was doing work after the operation.

    D: So, no involvement in any combat with the Taliban?

    [THE APPLICANT:] Correct

    D: How often did you serve on patrol duties?

    [THE APPLICANT:] So, it would be every night. So, I would arrange five people from my street, and we might, the watch start at 8 o’clock and we would do our entry at the checkpoint first.

    D: So, you start 8pm, until what time?

    [THE APPLICANT:] Until 8 in the morning

    D: So, all night?

    [THE APPLICANT:] That’s right, and we would do the patrol in our street, the 5 people, and we would do it every night, different people, and I would do it two nights a week

    D: So, when was the last time you went on this kind of patrol duty?

    [THE APPLICANT:] I done it on [a day in] April 2015, and I got injured by them and after that I could not do it

    D: So, I could say, is that correct, that from August 2009 until [a day in] April 2015 you were involved in this VDC, and you were involved in doing patrol duties?

    [THE APPLICANT:] That’s right, and when I was on [international assignments], and the back in village, I have been doing it.

    D: Okay, but then you went for nearly a year away in 2014, was it? When you went away to [Country 4] and everywhere else?

    [THE APPLICANT:] Yes, I have [an assignment] in that period

    D: So, you went in September 2014 until [February], you went for six months away to [Country 2], so you were not doing it then

    [THE APPLICANT:]  I was only doing it when I was in my village

    Discussion regarding attack on [a day in] April 2015

    D: So, you stated that on [a day in April] 2015 you were returning from Isha – late evening prayer – and some people with hidden faces beat you, severely beat you, with the sticks. Right? Correct?

    [THE APPLICANT:] Yes correct

    D: How did you know it was the Taliban and not your personal enemies?

    [THE APPLICANT:] I know that because when I was returning from the prayers their faces were covered and they beat me with the sticks. So that’s how I know them. So, after that I didn’t knew what has happened.

    D: No no no no, how did you know they were from Taliban? That’s the question. How did you know they were Taliban and not just somebody who had problems or your enemy? That’s what I’m asking.

    A: I knew that they were Taliban because they had previously also attacked me and because I have showed their houses, identified their houses, so I was on their targets. And I did not have any personal animosity with anyone

    D: This particular people, you said their faces were hidden, they were covered up. How did you know they were Taliban?

    [THE APPLICANT:] That’s how they do their work, someone that’s on their target list, they go and meet them while their faces are covered. And also, the first part August and then I receive the letter from them as well.

    D: Yes, but they could be just criminals, not Taliban, just criminals because you were wealthy. They wanted maybe money from your or something.

    [THE APPLICANT:] Well, they were Taliban because they had sent me letter, the letter to me before and stating that you are support – you have to be killed, your death needs to be a lesson for other people in your street, so they do not help the army anymore. So, a few days later they have attacked me when I was returning from my prayers.

    D: Still, I am not satisfied that these people, yes, the Taliban may be sending you letters and threats and so on, but these people, how many of them?

    [THE APPLICANT:] There were three to four people

    D: They could be just criminals.

    [THE APPLICANT:] I didn’t have any personal animosity with anyone else

    Discussion regarding motorcycle attack in 2012

    [THE APPLICANT:] Yes, so it was me and my [uncle]. We were going to the bazaar when an unknown motorcyclist as stated. And when I saw them, I ran away scared. And then I [unclear]

    D: Who was riding the motorcycle, your uncle or the people that attacked you?

    [THE APPLICANT:] So, me and my uncle were outside the workshop when I saw the two motorcyclists approaching, two armed guys, they were wearing jackets, so I think that they are Taliban and they going to attack us. So, I yelled at my uncle as well and ran away. So, the people that were attack us were on motorcycles.

    D: Who killed your uncle your two uncles. How do you know who killed them?

    [THE APPLICANT:] The Taliban

    D: How do you know that?

    [THE APPLICANT:] Because their faces were covered, and it was around 8:30 in the evening and they have [unclear] and also firing at us and my uncle was killed.  So that’s how they conduct the target killing., their faces are covered.

    D: Okay but criminal gangs also have their faces covered and they’re just doing it for money

    [THE APPLICANT:] No, they were Taliban

    [THE APPLICANT:] They were Taliban because they had previously also sent out the letter saying that we will attack you and that’s how they do their attacks and their faces are covered, so I previously mentioned they had attacked us as well, but we had survived.

    D: And this happened in what precisely? Not in your village, it happened outside your village, right?

    [THE APPLICANT:] It happened outside my village in Karachi

    D: So, it happened in Karachi not in your village?

    [THE APPLICANT:] Yes, it happened in Karachi

    D: So how do you know it is related to your activities in Swat, if it happened in Karachi?

    [THE APPLICANT:] Well, I believe that because at that time the army was in power so they could not attack us in our village. And they have spread out around the country and so that’s why they have attacked us in Karachi because they were in Karachi as well at that time.

    [THE APPLICANT:] The army was in power in my village at the time, they could not attack us. And the Taliban were spread out throughout the country at that time. And that’s how they have attacked us in Karachi because they were also in Karachi

    Discussion about the applicant’s last encounter with Taliban

    D: When was your last encounter with the Taliban?

    [THE APPLICANT:] The last letter I received from them was on [a day in] October 2017.

    D: That was the threat letter, but your personal encounter, the last one, when was that?

    [THE APPLICANT:] September 2015 when I was beaten by them. That was the last encounter.

    D: When was the last threat from the Taliban? Threat letter?

    [THE APPLICANT:] [That day in] October 2017 was the last letter

    D: How many letters did you receive in all?

    [THE APPLICANT:] Total two letters

    D: Why did the Taliban keep sending you threat letters in 2015 and in 2017?

    [THE APPLICANT:] So when I returned back from my [assignment], on the 10th of March or something they had sent me a threat letter because I had resumed my activities back in the village. So, they were upset and angry at me. And that’s why they threaten me, because I had re-engaged in my activities.

    D: That was 2015, and then two years later, why did they send you one in 2017?

    [THE APPLICANT:] Because someone had beaten me up, they believed that they had killed me. So, I am dead. But they had severely beaten me at that time, and I got unconscious at the time. But later on, when they found out I was not dead and not even disabled, so that’s why they have sent me again the second letter.

    D: What did this letter say. Very briefly please

    [THE APPLICANT:] Which letter are you referring to?

    D: Both. In very brief summary what did they say?

    [THE APPLICANT:]  So, the first letter that I have received, it said that I have to be killed, and it was from the Taliban in Pakistan that I would be punished to death because I have pointed out Taliban houses to the army. I would be used as punishment that other people in the area would not have the courage to help the army again. And it also stated that we have tried to harm him before, and they were referring to the incident that happened to me and my [uncle] in Karachi.

    D: What did the Taliban want from you?

    [THE APPLICANT:] They wanted for me, because I have stood against them and become head of the VDC, and because of their opposition I had become their target bigger than the army even

    D: No, the question is what did they want from you, not what you became. What did the Taliban want from you?

    [THE APPLICANT:] In the letter they said that they would kill me, they would shoot me, they also said that they would be hitting me with my head on my back. That’s what they stated

    D: Did they ask you for money for supporting their cause?

    [THE APPLICANT:] No, they didn’t ask for money, they said that I should stop helping the army and it was a really bad thing that I am helping the army.

    D: But you were not the only one, there were several people, and I find it very difficult to accept that you were the only one identifying those houses based on, as I said before, pretty much everyone in the village is some association with the Taliban. So why would the army rely on you to identify the houses. I mean, they know pretty much where the Taliban is.

    [THE APPLICANT:] Not everyone has done that work and I was the head of my street, and I was supervising those people and because I was leading my street, so because of that

    D: So, the houses were secret from the army? I find it very difficult to accept that because of what I said before.

    [THE APPLICANT:] So, the army was new into our area. They didn’t know the area quite well. So, they have made the VDC so we could identify the Taliban, their houses and their relatives and that’s what I have been doing. Because I was the leader of my street, so I had the lists from my street that I would give them. They didn’t know anything about my street, and I would identify people on my street who were with Taliban.

    D: So, did you know these people personally as they were your neighbours?

    [THE APPLICANT:] Yes

    Discussion regarding the applicant’s overseas travel and being head of VDC

    D: You were actually not there, you were [working overseas]. Why would they pick you for somebody to be head of the committee if you were not permanently based in your village? You were going away for six months, for instance. Why would they pick you?

    [THE APPLICANT:] When I became the head of my street in 2009

    D: And you got the job as [an occupation 1] in 2014, right? 2011 you completed the course

    [THE APPLICANT:] Yeah, and I have been really active during that time against the Taliban in my street

    Discussion regarding the applicant’s other duties in VDC

    D: So, you kept [working overseas] and doing your job and you were also involved in that. Can you tell me what else, beside identifying the houses, what else did you do for the army?

    [THE APPLICANT:] When the army would call me and give me an instruction, I would pass that on to the people on my street. For example, if any guests were coming to anyone’s house, the instructions were that they first needed to come to the checkpoint, they needed to register themselves and after that can go. So, I would be passing on all the messages to the people on the street.

    D: Why did the army, why did they choose you?

    [THE APPLICANT:] So, no one from the village was coming up to take that role. And that was my wish to fight against the Taliban and stand against them so that’s why I came forward

    D: What do you mean to take their call? How? What do you mean, they were calling people or? By phone? What do you mean, taking their call? What do you mean by that?

    [THE APPLICANT:] At that time to council meeting happened. No one came forward to take up the role that the army was offering. And it was my wish to stand up against the Taliban, so I came forward and took up that role.

    D: So, you volunteered?

    [THE APPLICANT:] Yes, so for my personal wish I came forward to take it

    D: Did they pay you for this service?

    [THE APPLICANT:] No, it was not paid and I was just standing against them

    Discussion regarding the applicant seeking protection from army

    D: Did you ever ask the army for help or report the threats to them?

    [THE APPLICANT:] So, I did report it when I received the threat and the threat letter, so I provide it to the army checkpoint.

    D: And what help did they provide in this situation?

    [THE APPLICANT:] So, they have provided me with a pistol and [unclear] that I would carry with me

    D: I thought initially they gave you a pistol as part of the equipment.

    [THE APPLICANT:] So, I had a pistol licence from the beginning when the army advised me that if I was ever to have any issues, I was to report them immediately at the checkpoint [unclear]

    D: So, the help they provided was to tell you to advise them at the checkpoint?

    [THE APPLICANT:] Yes, they said that if you feel, become suspicious, of anything to immediately call us at the checkpoint

    D: And when was this advice given?

    [THE APPLICANT:]  It was when I received the threat letter and they have advised me that if you fear anything or become suspicious of anything then inform us immediately

    Discussion regarding any other incidents in Pakistan

    D: Has anything else happened to you after the last threat letter in February 2017? And before you departed in February 2018?

    [THE APPLICANT:] Nothing else happened in that period

    D: So, for over a year nothing else happened right?

    [THE APPLICANT:] Yes, that’s correct but I was staying in my house the whole time and I wouldn’t leave the house.

    D: Has anyone approached your family in asking about you recently or after you left in February 2018?

    [THE APPLICANT:] Yes, my father had told me that two to three times different people had come in the street asking about me and where I am.

    D: And who are these people?

    [THE APPLICANT:] We don’t know who those people are. They’re unknown people. And they’ve been asking other people in the street about me, about my whereabouts. So we don’t know if they are Taliban or anyone else.

    D: And when was that?

    [THE APPLICANT:] When I was [working on assignment], from that time they had been asking me because they didn’t see me in the area, so they were asking about my whereabouts, where I am and what I’m doing

    [THE APPLICANT:] There might be other thing that happened, but my father did not tell me because I’m mentally stressed and uh, mentally stressed actually, so he doesn’t tell me much but just at one point he told me that they were asking about me.

    [THE APPLICANT:] My father also tells me that if I was there, they would have some issues. Because a lot of people have been killed by them.

    Discussion regarding why the applicant would still be a target if he returned to Pakistan

    D: Now, the question is why do you think the Taliban would invest the time, resources, and effort into targeting someone like yourself three years after their last threat in 2017. So we are now in 2020 and the last threat was 2017. Nothing happened and also peace was restored by 2009 military offensive. The situation completely changed in that part of the world. So why do you think they would target you now?

    [THE APPLICANT:] Well, those people have fled the area and they have spread out in different parts of the country, and they’ve been looking for [unclear] they do target killings in KPK. I’m the biggest target of them because they know that the army did not knew the houses and as the head of the VDC I have identified to the army the houses and that’s why I’m a greater target.

    D: Considering that your family continues to reside in your village in Swat, why would you be personally targeted if you were to return there? Nothing happened to your family

    [THE APPLICANT:] They do not bother my family because they have not acted against them. And I was the one who was active in the VDC and did all those things against them. That’s why they are after me not after my family. My [uncle] was a member of the VDC and that’s why he was killed, and my [other] uncle was an ANP member and was with me at the time to assist me, that’s why he was killed.

    Discussion regarding relocation

    D: Can you relocate from Khyber, to for example, Karachi or Islamabad, or to anywhere else from your village, in Swat?

    [THE APPLICANT:] No, I cannot relocate to any other part of Pakistan because in Karachi I was attacked along with my [uncle] where he got killed and I luckily survived in that incident. So because of my activities I [unclear]

    D: So, you said in Karachi you were targeted, but it wasn’t you, it was your uncle who was targeted. You just happened to be there

    [THE APPLICANT:] At that time, I was actually the target of attack because of Taliban [unclear] my [uncle] has not done anything against the Taliban, but he was happened to be with me

    D: You said you can’t because – Karachi – but what about Lahore, other places. Islamabad. Why can’t you locate there?

    [THE APPLICANT:] I will be targeted because I am their target and no matter where I go in Pakistan I will be targeted everywhere. I will be identified because of my dress, because of my skin colour, because of my Pashto. Everyone will be able to identify that I’m a Pashtun and no one will give me a place to live, or I don’t have any family members anywhere else. It doesn’t matter where I would go, they would find me, they would identify me because everywhere I go, I need to provide my identity card and the Taliban have a lot of sources that would inform them about my whereabouts.

    Discussion regarding state protection

    D: Why would you not be able to seek and obtain state protection in Pakistan given that the security situation considerably improved since 2019?

    [THE APPLICANT:] Because they cannot even protect themselves so how can they offer me protection, and I did not feel safe in Pakistan because at different times I have been targeted and they have threatened me as well so I felt my life would be in great danger in Pakistan. Because in March of 2020 they attacked a policeman who I believe was carrying a gun and he was killed.

    D: Yes, but all information from country research indicates that there is improved security situation across Pakistan and attacks have been decreasing.

    [THE APPLICANT:] I know but the people there targeted, they cannot survive there. So [unclear name] was also a VDC member and went to America as well and he was also killed on 12 December D: Are you saying that the security situation has not improved?

1. [THE APPLICANT:] No, it has not and I’m a target.  

   Representative Submissions

2. On 28 September 2023 the applicant’s representative provided the Tribunal with a number of pre-hearing submissions. These submissions included:

   ·Representative submission dated 28 September 2023

   ·Applicant’s Statutory Declaration dated 14 October 2022

   ·Applicant’s Statutory Declaration dated 26 April 2023

   ·Applicant’s Statutory Declaration (unsigned) dated 26 September 2023

   ·Death registration certificate of [Person A]

   ·Death certificate of [Uncle A]

   ·Letter from [Health Service 1] dated 7 March 2022

   ·Radiology Report by [Doctor A] ([Medical Centre 1]) dated 23 March 2022

   ·Letter from [a named neurosurgeon] dated 20 June 2022

   ·Support letter from [Doctor A] ([Medical Centre 1]) dated 8 August 2022

   ·Letter from [Doctor B] ([Health Service 2]) dated 30 March 2023

   ·Referral to [Doctor C] dated 5 April 2023

3. The medical documentation identified by heading in paragraph 15 above refer to the applicant’s injury sustained in March 2022 and subsequent treatment for the ongoing pain maintenance and numbness, as well as a referral to a neurosurgeon for suspected [medical condtion][3].

   [3] Letter from [Doctor B] ([Health Service 2]) dated 30 March 2023

4. In the written submission, the applicant’s representative provided a background to the applicant’s circumstances and his protection claims, which appear consistent with the claims made in the initial visa application, as well as those made in his more recent statutory declarations. In summary, it is submitted that the applicant is seeking protection on the basis of[4]:

   ·His enduring and significant ties to the ANP through his support and involvement with the party itself, as well as his role in the PSF

   ·His high-profile role as village leader and army informant in the VDC

   ·His physical disability as a result of the injuries he carried from the attack on him in 2015, and more recently, his workplace accident in 2022, which has led to a visible, physical impairment

   ·His mental health condition as he suffers from severe Major Depressive Disorder with severe anxious distress

   [4] Representative submission dated 28 September 2023, pp.7-8

5. The representative also made a number of submissions in response to the delegate’s findings in their decision records, which are summarised below:

   ·That despite the delegate finding that the applicant had sporadic and limited involvement in the VDC due to spending most of his time [working overseas], the applicant in fact spent only a period of just under six months [overseas], [September] 2014 to [February] 2015[5].

   ·That it was contradictory for the delegate to accept that the applicant conducted night patrols and may have informed on Taliban members resulting in their arrest, and then conclude that his involvement with the VDC was sporadic and limited on the sole basis of the erroneous factual finding about his time away from Swat[6].

   ·In relation to the delegate’s finding that the applicant had not provided any explanation as to why the Taliban waited until 2015 and then 2017 to threaten him, it was submitted that the applicant was active in the VDC up until his six month absence from Swat between September 2014 and February 2015 and that he was threatened and then beaten upon his return, and that it was inherently plausible that his return to Swat would have reached the Taliban and they would have acted on the news[7]. 

   ·In relation to the second threat in 2017, it was submitted that from the time of his attack in 2015 until September 2017 the applicant was immobile and recovering from his injuries, and that the threat letter that followed came shortly after his return to VDC activities and made reference to the intention to have killed or permanently incapacitated him in the earlier attack[8].

   ·That the delegate’s failure to accept that the Pakistani army would need the assistance of the applicant to inform them, while accepting that he had patrolled his village at night and may have identified 11 Taliban houses which resulted in the arrest of Taliban members by the army was baseless, concerning, and should be disregarded by the Tribunal[9].

   ·Finally, it was noted that the delegate made mention of the applicant’s mental health concerns but not of his physical impairment in their decision record. The delegate stated that they were not satisfied that the applicant has a disability which is an innate or immutable characteristic that is so fundamental to his identity that he should not be faced to renounce it and that it distinguishes him from society. The representative submitted that the delegate’s erroneous application of the law, applying s5L of the Act where they may have intended to refer to s5lA(3)(c)(iv) relating to circumstances where a person may be required to conceal a disability as an effective measure against the relevant harm, only added to the many glaring errors in the decision record, and requested the Tribunal to take the findings at face value[10].

   [5] Representative submission dated 28 September 2023, p.9

   [6] Representative submission dated 28 September 2023, p.9

   [7] Representative submission dated 28 September 2023, p.10

   [8] Representative submission dated 28 September 2023, p.10

   [9] Representative submission dated 28 September 2023, p.11

   [10] Representative submission dated 28 September 2023, p.11

   Timeline of time spent in/out of Pakistan re Applicant in RA number 2011739

6. As the material summarised above both the findings of the delegate and the consequent submissions as to periods of absence from his home village and Pakistan because of primarily work duties the Tribunal engaged in its own researches as to applicant movements from 2011 until his last [departure] from Pakistan and arrival in Australia in April 2018. Tribunal researches demonstrate the following:

   Timeline of movements in and out of Pakistan

   ·[June] 2011 to [December] 2011 – Applicant leaves home village to study an [occupation 1] Course at [College 1] in Lahore[11].

   [11] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·[December] 2011 – Applicant returns to home village[12].

   [12] Applicant’s Statutory Declaration dated 26 April 2023 p.1, Tribunal File 2011739 Doc ID: 11579052

   ·[March] 2012 – Applicant travels to Karachi to process his [occupation 1] certificate and to familiarise himself with the company [Employer 1][13].

   [13] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·During 2014 – Applicant joined the [Business 1] and worked [on assignments] travelling to [specified countries] [14] for six months.

   [14] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·[March] 2015 – Applicant returned to home village after a job[15].

   [15] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·[November] 2017 – Applicant travels to Karachi[16].

   [16] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   ·[December] 2017 – Applicant returns to home village[17].

   [17] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   ·[January] to [February] 2018 – Applicant travels to and remains in Karachi in preparation for [next job][18].

   [18] Applicant’s Statutory Declaration dated 26 April 2023 p.7, Tribunal File 2011739 Doc ID: 11579052

   ·[February] 2018 – Applicant flies to [Country 3] and [commenced assignment, later travelling] to [Country 1] and then to Adelaide, Australia[19].

   [19] Applicant’s Statutory Declaration dated 26 April 2023 p.7, Tribunal File 2011739 Doc ID: 11579052

   ·[April] 2018 – Applicant arrives in Australia as the holder of a [temporary] visa[20].

   [20] Applicant’s Statutory Declaration dated 26 April 2023 p.1, Tribunal File 2011739 Doc ID: 11579052

   Time spent [on assignments]

   ·During 2014 – Applicant joined the [Business 1] and worked [on assignments] travelling to [specified countries] [21] for six months.

   [21] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·[February] 2018 – Applicant flies to [Country 3] and [commenced assignment, later travelling] to [Country 1] and then to Adelaide, Australia[22].

   [22] Applicant’s Statutory Declaration dated 26 April 2023 p.7, Tribunal File 2011739 Doc ID: 11579052

   ·[April] 2018 – Applicant arrives in Australia as the holder of a [temporary] visa[23].

   [23] Applicant’s Statutory Declaration dated 26 April 2023 p.1, Tribunal File 2011739 Doc ID: 11579052

   ·Total: 6 months + 3 months = 9 months spent [travelling on assignments].

   Time spent outside of Pakistan

   ·Between 2014 and 2014 – Applicant joined the [Business 1] and worked [on assignments] travelling to [specified countries] [24] for six months.

   [24] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   ·[February] 2018 – Applicant flies to [Country 3] and [commenced assignment, later travelling] to [Country 1] and then to Adelaide, Australia[25].

   [25] Applicant’s Statutory Declaration dated 26 April 2023 p.7, Tribunal File 2011739 Doc ID: 11579052

   ·[April] 2018 – Applicant arrives in Australia as the holder of a [temporary] visa[26].

   [26] Applicant’s Statutory Declaration dated 26 April 2023 p.1, Tribunal File 2011739 Doc ID: 11579052

   ·Applicant has remained in Australia since [April] 2018 – to present 5 years in Australia.

   ·Total: 6 months + 3 months + 5 years = 5 years, 9 months spent outside of Pakistan

   Time spent inside [Village 1] village

   ·Applicant born in [Village 1] village on [date].

   ·[June] 2011 to [December] 2011 – Applicant leaves home village to study an [occupation 1] Course at [College 1] in Lahore[27].

   [27] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   o[Number] years spent in [Village 1] (birth to time studying in Lahore) minus 6 months studying = [number] years

   ·[December] 2011 – Applicant returns to home village[28].

   [28] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   oMinus 6 months spent on [assignments] in 2014[29].

   ·[March] 2015 – Applicant returned to home village after a job[30].

   o2011 to 2014 = 3 years minus 6 months on [assignments] = 2.5 years

   ·[November] 2017 – Applicant travels to Karachi[31].

   ·[December] 2017 – Applicant returns to home village[32].  (1 month)

   ·Total = [Number] years + 2.5 years + 1 month = [Number] years

   [29] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   [30] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   [31] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   [32] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   Time spent outside of [Village 1] village but inside Pakistan

   ·[June] 2011 to [December] 2011 – Applicant leaves home village to study an [occupation 1] Course at [College 1] in Lahore[33].  (6 months)

   ·[November] 2017 – Applicant travels to Karachi[34].

   ·[December] 2017 – Applicant returns to home village[35].  (1 month)

   ·[January] to [February] 2018 – Applicant travels to and remains in Karachi in preparation for next job on [assignments][36].  (2 weeks)

   ·Total: 6 months + 1 month + 2 weeks = 7.5 months

   [33] Applicant’s Statutory Declaration dated 26 April 2023 p.4, Tribunal File 2011739 Doc ID: 11579052

   [34] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   [35] Applicant’s Statutory Declaration dated 26 April 2023 p.6, Tribunal File 2011739 Doc ID: 11579052

   [36] Applicant’s Statutory Declaration dated 26 April 2023 p.7, Tribunal File 2011739 Doc ID: 11579052

7. The Tribunal is of the view the material summarised in paragraph 19 immediately above demonstrates that the applicant spent only a little over six months outside of his home village of [Village 1] in Swat during his time residing in Pakistan, which supports his claims of having been present in his home village which allowed him to be actively involved in the VDC, which he states contributed to his being targeted by the Taliban. His time in Australia since [leaving an assignment] in Adelaide in 2018 is the longest period that the applicant has been away from his home village. The Tribunal notes this conclusion supports the applicants’ submissions as summarised at dot point 1 of paragraph 18 above and cited in footnote number 5 above.

   Country Information Pakistan

   Country Information ANP

8. The recent Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan sets out the following concerning the ANP in Pakistan:

   ·The Awami National Party (ANP) is a secular Pashtun nationalist political party. It was formed in 1986 and enjoys strong support in Khyber Pakhtunkhwa and Balochistan. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government. Since 2018, ANP members have participated in large-scale demonstrations led by the PTM against human rights abuses against Pashtuns in the tribal regions of Pakistan.

   ·The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and work to improve the Pakistan- Afghanistan bilateral relationship. In July 2018, a suicide bomb attack at an election rally in Peshawar wounded 69 and killed at least 20, including prominent ANP politician Haroon Bilour. In June 2019, the Peshawar city district president of ANP, Sartaj Khan, was gunned down in Gulbahar, Khyber Pakhtunkhwa. The ANP was also the target of TTP attacks ahead of the May 2013 elections. While security operations have weakened the TTP in recent years, they retain the capacity and intent to target ANP members and leadership (see Armed Groups).

   ·DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders. ANP leaders may also be at risk of official harassment due to their association with the PTM protest movement[37].

   [37] Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan dated 25

9. The more recent country information report[38] dated 25 April 2023 from the United Kingdom makes the following findings:

   [38] 'Country policy and information note: political parties and affiliation, Pakistan, May 2023', Government of United Kingdom, 25 April 2023

   ·In general, low-level members and activists of opposition political parties, or their family members, are unlikely to be of interest to the authorities and/or non-state actors and subject to treatment that is sufficiently serious, by its nature or repetition, to amount to persecution.

   ·Some senior party members may – depending on the party, their location, the person’s profile, views expressed and previous activities, and difficulties with the state, particularly in relation to corruption charges – be subject to treatment, including harassment, arrest, arbitrary detention and criminal charges by the security forces, which amounts to persecution.

   g) Threats from non-state actors

   ·Paragraph 3.1.18 The level of risk will depend on the particular profile of the person, the party they support and the area it operates in, their activities, the nature of the threat and how far it would extend. Decision makers must consider each case on its facts with the onus on the person to show that they would be at real risk of serious harm or persecution on account of their actual or perceived political opinion.

   ·Paragraph 3.1.19 Some political parties and their members have been targeted by terrorist groups. However, the number of attacks against political leaders or party workers are low compared to the overall number of terrorist attacks. According to the Pak Institute for Peace Studies (PIPS), between 2019 and 2022 there were 844 terrorist attacks, of which 28 (3.3%) targeted political leaders or workers (see Politically motivated violence).

   ·Paragraph 10.1.3 A prominent anti-Taliban party, ANP members have been attacked by the Tehrik-e-Taliban Pakistan (TTP) for its secular ideology, for openly supporting the counter-insurgency operations in the former Federally Administered Tribal Areas (FATA) and Khyber Pakhtunkhwa, as well as for its work to improve the Pakistan-Afghanistan relations[39][40][41].

   Applicant role within ANP

   ·The applicant outlined his role with the ANP as that of an activist member – joining the Pakthun Student Federation, the student branch of the ANP where he actively promoted education and opposition to the Taliban.

   ·He described his immediate and extended family members as being members of the ANP.

   [39] RFERL, ‘Anti-Taliban Party Official Gunned Down In Pakistan’s Peshawar ( )’, 29 June 2019

   Country Information VDC’s

10. The recent (January 2022) DFAT Report[42] provided the following detail concerning VDC’s in the KP Province of Pakistan

    Peace committees

    ·Paragraph 3.83 In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.

    ·Paragraph 3.84 Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). Peace committees have themselves sometimes been accused of violence or human rights abuses (see Judiciary, Cruel, Inhuman or Degrading Treatment).

    ·Paragraph 3.85 DFAT assesses members of peace committees and their families are at moderate risk of violence by militant groups.

    ·News reports indicate at least 200-250 Tehreek-e-Taliban Pakistan (TTP)members are in Swat Valley and surrounding areas[43].  The most recent incident occurring in June 2023, where two police constables and a bank security guard were killed in Sabzi Mandi, Swat Valley by TTP[44]. Protests by residents of the Swat Valley against the resurgence of TTP in their province continued into January 2023[45].

    Applicant role within his VDC

    [42] DFAT Country Information Report Pakistan (25 January 2022)

    [43] 'Radical Islam Makes its Way from Afghanistan to Pakistan', Salman Rafi Sheikh, Asia Sentinel,  15 August 2022, 'TTP ‘checkpoint’ established in Swat: report', Nation, The (Pakistan),  11 August 2022,; 'Pakistan: Khyber Pakhtunkhwa’s Swat Valley witnessing a resurgence of the TTP', The Print (India), 8 November 2022, and 'Swat between conflict and peace', Usman Torwali, Pakistan Today, 15 August 2022, 'Challenges For Pakistan As The Taliban Return', Osama Ahmad, Friday Times (Pakistan), 15 August 2022,

    [44] '2 policemen, security guard martyred by gunmen in Swat’s Mingora', Zahid Imdad & Fazal Khaliq, Dawn (Pakistan), 8 June 2023; and 'Two cops martyred in Mingora attack', Hazrat Ali Bacha, Express Tribune (Pakistan), 9 June 2023

    [45] 'Pashtuns Rally For Peace In The Face Of A Renew ed Offensive Against The Pakistani Taliban', Abubakar  Siddique, Radio Free Europe/Radio Liberty. Gandhara, 13 January 2023

1. The applicant provided the following detail as to his role within his VDC:

   ·The applicant describes his role in the VDC as the head of the VDC in [Village 1][46].

   ·He joined the VDC in August 2009[47] 

   ·He states that as part of his role in the VDC, he conducted nigh patrols with give other members from 8pm to 8am two days a week and prepared patrol rosters for the area[48].

   ·As part of his role with the VDC, the applicant claims that he identified 11 Taliban houses, which resulted in the arrest of Taliban members by the army[49]. 

   [46] PV Interview at 52:39

   [47] PV Interview at 51:10

   [48] PV Interview at 1:01:09 and 1:01:38

   [49] PV Interview at 1:00:20

   Country Information - TTP

2. A series of more recent government, NGO and press reports reveal the following concerning a resurgent TTP or Taliban in KP Province in Pakistan:

   ·In November 2022 the TTP ended its ceasefire talks with the government and issued an order to its members to carry out attacks across the country[50].  On 28 November the TTP announced an end to the ceasefire and called on all members ‘…to carry out attacks…wherever…in the entire country.’  Since the announcement several terror attacks have occurred – targeting the Hazara community in Quetta,  polio workers,  police officials,  and female students.

   ·The militant group has intensified its operations within Khyber Pakhtunkhwa and areas bordering Afghanistan[51]. In the first quarter of 2023 multiple attacks, by the TTP and its closely affiliated groups, on police personnel occurred[52]

   ·A surge in violence by separatists and Islamist armed groups continued into the first half of 2023. According to a report by Early Warning Project, Pakistan has ranked as the highest risk country for mass killings for three years in a row[53].  

   ·Khyber Pakhtunkhwa has emerged as the most affected province. The PICCS Militancy Database showing a 51 per cent rise in terror attacks in Khyber Pakhtunkhwa in 2023 compared to the same period in 2022[54]. 

   ·PIPS[55] observes a shift in the militant landscape and terrorist activities in Pakistan since the Taliban takeover in Kabul in August 2021. Cross-border movements by militants from Afghanistan to Pakistan have led to increasing numbers of attacks on Pakistan security personnel.  PIPS documented a total of 258 incidents of violence of different types in KP in 2022[56]. As much as 169 ‘terrorist attacks’  took place, including 130 attacks against security/law enforcement agencies, eight attacks against tribal elders or peace committee members supportive of the government, seven attacks targeting civilians and six attacks against health/polio workers and/or their security escorts[57].   

   ·Despite the rising level of violence in KP, direct attacks against civilians declined in 2022, PIPS reports. Only seven attacks in KP targeted civilians explicitly. This trend, which was observed in previous years as well, is a result of the changing tactics militants employ. Fearful of the public wrath that attacks against the civilian population engender, militants prefer to target security forces, pro-government tribal elders and political leaders, PIPS explains[58].   Most of the attacks against civilians were reported in the tribal districts of the province.

   [50] 'Pakistan Taliban ends ceasefire with gov’t, threatens new attacks', Abid Hussain, Al Jazeera, 27 November 2022, 'TTP ends ceasefire with govt, orders its militants to 'carry out attacks in entire country'', Tahir Khan, Dawn (Pakistan), 28 November 2022,

   [51] ‘Police vehicle narrowly escapes bomb blast in Peshawar’s Badaber area', Zahid Imdad, Dawn (Pakistan), 21 January 2023, Pakistan Security Report 2022', Muhammad Amir Rana and Safdar Sial, Pak Institute for Peace Studies, January 2023, p. 14,

   [52] 'Three Islamists, two others killed in storming of Karachi police station', Akhtar Soomro and Ariba Shahid, Reuters, 17 February 2023, 'Death toll from Peshawar mosque bombing rises to 101 as police say ‘major arrests’ made', Sirajuddin, Dawn (Pakistan), 31 January 2023,

   [53] 'Early Warning Project Countries At Risk For Mass Killing 2022-23 Statistical Risk Assessment Results', United States Holocaust Memorial Museum, November 2022, p.9,

   [54]  'Terrorism in Pakistan Soars 79% in First Half of 2023', Pakistan Institute for Conflict and Security Studies, 2 July 2023,

   [55] Pakistan Institute of Peace Studies

   [56] PIPS, Pakistan Security Report 2022, 6 January 2023, url, p. 37

   [57] PIPS, Pakistan Security Report 2022, 6 January 2023, url, pp. 36-37

   [58] PIPS, Pakistan Security Report 2022, 6 January 2023, url, pp. 40-41

   Country Information – Recent Activity within the Swat District

3. Numerous sources outline the following developments with respect to the Swat District:

   ·August 2022 saw several reports 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.

   ·There were reports of widespread fears among locals, and estimates of there being or 200-250,  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 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.

   ·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[59].

   [59] 'The Pakistani Taliban’s Reemergence in Swat', Akbar Notezai, Jamestown Foundation, 09

   Country Information - CTC Sentinel located within the Combatting Terrorism Center at West Point[60]

   [60] May 2023 Volume 16, Issue 5

4. This report from CTC Sentinel located within the Combatting Terrorism Center at WestPoint  provides a comprehensive and current status report on The Tehrik-i-Taliban after the Taliban’s Afghanistan takeover. It sets out the following:

   ·With Pakistan engulfed by political and economic turmoil, the Tehrik-i-Taliban Pakistan (TTP) is again growing as a threat.

   ·With a solid organizational foundation and its eyes set on the Pakistani state, the TTP appears ready to follow in the footsteps of the Afghan Taliban and take control of territory in Pakistan’s tribal areas. The Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.

   ·The TTP has obtained new more sophisticated weapons and relocated fighter from Afghanistan to Pakistan and is now turning its focus back to its war against the Pakistani state. Over the past two years, the group has gone through a series of mergers, strengthened its media and operational activities, moved away from the indiscriminate targeting of civilians in suicide attacks, implemented a range of new internal policies centralizing its organizational structure, and settled on a localized strategy.

   ·In sum the Taliban victory in Afghanistan has emboldened and strengthened the TTP. With the Taliban in control of Afghanistan and sympathetic to the TTP, and the group no longer having to fear operations against it there, the TTP now enjoys a level of ‘strategic depth’ that is arguably unparalleled in its history.

   ·In the aftermath of the Taliban taking control of Afghanistan, four key developments have defined the TTP’s ensuing resurgence: a series of mergers, the adoption of a centralized organizational structure emulating the Afghan Taliban insurgency, growing operational activity, and a sharp strengthening in media operations.

   ·The TTP’s ascendant trajectory suggests that the current leader, Mufti Noor Wali Mehsud, appears to have been successful in defining and implementing a new strategy based on the group’s internal reform process, which was integral to its survival.

   ·It became clear in the negotiations with the government in 2022 that the group has limited its immediate objective to territorially controlling the tribal belt adjacent to Afghanistan. For now, this indicates that the TTP has placed limits on its insurgency in the realization that an Afghan Taliban-style victory in Pakistan is currently an unrealistic goal[61].

   [61] CTC Sentinel May 2023 Volume 16, Issue 5 pages 1 to 10

   Evidence, Findings, Analysis and Conclusions

5. The Tribunal finds as follows:

   • The applicant is [an age]-year old Sunni Pashtun, single male, born and raised in the village of [Village 1], [Town 1], Swat District, Khyber Pakhtunkhwa (KBK) Province, Pakistan. His immediate and extended family members are members of the Awami National Party (ANP). His immediate and extended family members continue to reside in [Village 1] village to date.

   ·During his period of residence in [Village 1] village he was an activist member of the ANP generally involved in campaign, recruitment and educational duties. Whilst he did not occupy formal positions of leadership in the ANP he played a critical role of recruitment and education of younger village people. This activity is likely to have been observed by Taliban supporters in his village and reported to more senior elements of the TTP.

   ·The applicant spent lengthy periods of his adult life living in his home village and his absences from the village were minimal. During his lengthy periods of residence in his home village he played a role as activist, organiser, leader and advisor in his local VDC. This activity was dangerous and involved continuing engagement with the Pakistani armed forces.

   ·It is likely the advice he provided to the Pakistani armed forces directly resulted in the deaths of several if not many Taliban supporters and activists in his home village. These VDC activities are most likely to have drawn the attention of the Taliban.

   ·The Tribunal is satisfied the applicant’s membership of various particular social groups at risk in Pakistan has been established. He maintains a relatively high profile as an army informant, at least at local village level, for his actions which caused the arrest of numerous Taliban members.

   ·The applicant as a person with visible disabilities is easily distinguishable for targeted persecution and discrimination across Pakistan.

   ·The country information set out above in support of the applicant’s claims paints a picture of a chaotic and deteriorating security situation in KP Province Pakistan amidst a dominant and ongoing Taliban resurgence. The dangers for those known or perceived as Taliban opponents is clear.

   ·Even though the Taliban has indicated it wishes to concentrate and limit its terrorist activities against police stations, police personnel and security personnel in KP Province and closer to the Afghanistan border more generally it is abundantly clear there is an ongoing pattern of non-police and or non-security attacks in KP province. These attacks usually occur in public rallies or large public gatherings and appear to be indiscriminate and intended to oppress the wider population who may be active in or supporters of the ANP.

   ·The Taliban’s influence extends throughout Pakistan as do the security risks.

   ·The Tribunal is inclined to the view the applicant could re-locate to a region of Pakistan where he would not face these threat.

   ·In that circumstance he would face other threats to his life and it would be clearly unreasonable for the applicant to access those areas, due to his disability and the discrimination he would face for his health conditions, as well as his ethnicity.

   ·The Tribunal is of the view the applicant lacks necessary critical support networks elsewhere in Pakistan and would face the overwhelming likelihood of being unable to subsist if he were required to relocate.

6. In paragraphs 21 to 27 above the Tribunal has summarised a large amount of CI re Pakistan. Similarly in recent months the Tribunal has given down a number of decisions where the fact situation whilst not identical has been remarkably similar to the current review application. Generally those other review applications have a number of material characteristics in common with this review application. The Tribunal lists them as follows:

   ·An applicant of Pashtun ethnicity.

   ·An applicant or from a ANP family sometimes active in Pakistani politics for decades and with a disposition that might be described in Australian terms as liberal, progressive, secular seeking to harness the power and wealth of the state for improved facilities in education, hospitals, roads, and infrastructure in the home province of KP.

   ·An applicant who assumed a prominent position in his VDC over a lengthy period of time and whose voluntary role clearly show him to be actively partisan against the Taliban with the consequences of that partisan activity resulting in the death of Taliban activists and destruction of their property by the Pakistani armed forces.

   ·An applicant who follows the Sunni Islam faith and might be observant to varying degrees.

   ·An applicant who comes from KP Province.

   ·An applicant who comes from a family that over a lengthy period has drawn the ongoing enmity of the TTP or Taliban.

   ·An applicant born, raised and educated in a province the subject of sustained, deliberate and revitalised Taliban or TTP attack or intervention.

7. Accordingly the Tribunal adopts and follows in this review application the reasoning advanced in previous relevant review applications. In particular the Tribunal has given significant weight to the CI summarised in paragraphs 21 to 27 above under the headings Country Information – TTP, Country Information – Recent Activity within the Swat District and Submissions by the applicant’s representative regarding Country Information.

8. The Tribunal has tested those written submissions against relevant empirical data as cited in applicant submissions and Tribunal researches. In this review application the empirical data supports the submissions repeatedly put by the applicant to the Department and Tribunal over time.

9. Pakistan is a large, diverse country with extremes of living standards in the cities and rural areas alike. It is not difficult to draw specialised or exact conclusions or recommendations from a pattern of behaviour or events over time or in a particular geographic area no matter how large. It is generally difficult, however, to draw conclusions that have generalised application from localised, sectionalised or specialised events or occurrences.

10. Hence in this review application simply because there may have been sporadic or isolated examples of terrorist behaviour in particular years in a particular locale or particular province it does not automatically follow those examples are the norm. In fact they may be the opposite or now regarded as an aberration or anachronism because of pushback by local actors who object to the indiscriminate use of violence.

11. In this review application the Tribunal has given weight to the theoretical explanation and conceptual overview outlined in the literature as to the immediate strategic objectives of the TTP. The Tribunal has tested those explanations with a critical examination of the widely available public data as to the incidence of terrorism related incidents in KP Province and Pakistan in recent years. The Tribunal is satisfied there is a rising incidence of terrorism throughout KP Province and whilst those incidents are largely directed at state agencies or state personnel it is not possible to say there are not other terrorist incidents directed at civilians in different parts of KP Province.

12. In this review application there is considerable evidence that it is not localised, sectionalised, rare, aberrant or specialised events or occurrences that cause the Tribunal to have concerns the applicant will face the prospect of real harm should he return to his home village, nearby towns or cities in the North-western province of KP, the wider Swat valley area of KP or elsewhere in major cities like Karachi.

13. Rather the evidence is clear. It appears the applicant should not return to any population centre in his home province of KP because of his and his families’ politics. It appears he cannot relocate elsewhere in Pakistan because of his Pashtun ethnicity. It appears state protection is not a meaningful option to which the applicant can turn as many of the arms of the state in Pakistan are either compromised, politically motivated or captured by groups like the TTP for wider historic geographical and political reasons.

14. It is clear from the above CI that the TTP has re-organised its internal structures, imposed a significant degree of centralised control over its activists, retains a significant and growing presence in Khyber Pakhtunkhwa (formerly the North-West Frontier Province) and post the break-down of peace talks with the Pakistani Government has re-invigorated it’s on the ground activities including the use of violence, extortion, localised attacks and ongoing threats. These activities have occurred mainly in the Swat Valley area of Khyber Pakhtunkhwa Province with the clear purpose of taking territorial control of the tribal belt adjacent to Afghanistan.

15. Whilst the CI and in particular the CTC Sentinel Report cited above emphasise a TTP decision to withdraw from civilian attacks or harm in its campaign in KP Province and concentrate on police personnel or police installations on the ground it is not the case.

16. Rather as in the numerous instances cited by the applicant in his submissions it is clear that civilians either as direct targets or as incidental victims to an attack on their own or in large numbers at public rallies are considered fair game for murderous attack.

17. As was stated in above the applicant was born, raised and lived in born in [Village 1], Swat, Khyber Pakhtunkhwa (KP) province, Pakistan. He has lived and been the member of a family in what might be described at time of decision as “the eye of the storm”.

18. The more recent growth in the numbers of terrorist incidents in KP Province is not accidental. It reflects a strategic decision made by the TTP to concentrate their activities in the north west of Pakistan in areas immediately adjacent to the Afghanistan border. As an example the applicant’s written submissions make reference to VDC involvement.

19. The evidence before the Tribunal as derived from the whole of CI sources is that the TTP is in the process of largely withdrawing from the whole of Pakistan and intends to concentrate its terrorist activities in the foreseeable future in and around the KP Province.

20. The question thus becomes does the applicant have a well-founded fear of being persecuted for reasons of the applicant’s membership or particular social groups and his actual or imputed political opinion and is there is a real chance he would be persecuted for one or more of those reasons and does the real chance of persecution relates to all areas of the applicant’s home country.

21. As is clear from this decision record the applicant has provided to the Department and Tribunal over time a mass of information. The Tribunal has supplemented this information with its own researches. Most of that information related to the applicant and his family.

1. It related to his family, upbringing, education, life, ethnicity, family participation and activism within his local village via the VDC and political activity in support of the ANP and their trenchant and continuing opposition to the activities of the TTP over a period of 2 decades. He has been brave, resourceful and committed to a set of beliefs.

2. The Tribunal gives strong weight to the various CI sources set out and discussed throughout this decision record. The Tribunal is of the view that a Pashtun man with a family history of activism within a secular ANP, and known through family connections, family practice and service in assisting the armed forces to be implacably opposed to the various iterations of the TTP over time is a man living with danger when he is at home and living with his family in their traditional home area of KP Province.

3. The Tribunal is of the view the applicant faces a real chance of persecution on account of his high profile and continuing association with and support of the ANP, and perceived and actual anti TTP opinion and membership of particular social groups (known activists against the Taliban, known participant in a leadership role within his VDC, secular residents of Swat Valley and as a returnee from a western country).

4. He faces these dangers in [Village 1] village, the Swat District or more likely than not anywhere else in KP Province. The Tribunal is of the view the applicant faces a real chance of persecution in his home village of [Village 1], in his home Swat District and in the wider KP Province.

5. The Tribunal has come to this conclusion for the following reasons:

   ·the applicant’s long standing family engagement as a political activists within the ANP (the primary secular and anti TTP party for Pashtuns in KP Province)

   ·his continued involvement within the ANP in his home village until his departure for Australia

   ·His prominent role in his local VDC over time

   ·His critical role in assistance to the Pakistani armed forces in their retribution against known Taliban activists or supporters in his home village

   ·the large amount of CI that addresses the now resurgent TTP and its activities in the KP Province.

6. The Tribunal is satisfied that there is not anywhere in the KP Province where the applicant could establish a safe environment for himself now or in the reasonably foreseeable future.

7. The Tribunal is of the view the Taliban capture of Afghanistan has major implications for the future role of the TTP in the KP Province of Pakistan. This is because the Pashtun peoples of the two countries of Afghanistan and Pakistan are the same people separated by a line on a map originally drawn by the British arising out of 19th century Afghanistan wars.

8. The Tribunal accepts the new organisational structure of the TTP in Pakistan has led to an increase in sectarian violence in KP Province. The Tribunal has no reason to suggest this violence will decrease in the reasonably foreseeable future. In these circumstances the applicant faces a real chance of persecution.

9. The Tribunal is of the view the applicant faces a real chance of persecution should he return

10. to his home village of [Village 1], the Swat District the Swat Valley, any part of KP Province or any other part of Pakistan inclusive of Karachi.

    State Protection

11. The applicant submitted he would be unable to avail himself of effective state protection in relation to the harm he fears because of the general inefficiency of state apparatus in Pakistan and reports that confirm the links between the Pakistani military and intelligence forces  and the TTP, long suspected by residents of the tribal regions.

12. Hence the Tribunal understands the applicant’s submissions to mean he cannot avail himself of adequate state protection in two respects firstly in the wider KP Province and secondly in the country of Pakistan.

13. In respect of this 2 part approach the applicant cited numerous press reports and commentary from late 2022 up to and including July 2023 that publicised at least 8 and possibly more terrorist related TTP incidents predominantly but not exclusively targeting police officers or police installations in various parts of KP Province and Karachi. The applicant concludes “The information before the Tribunal confirms the targeted violence faced by perceived opponents of the Taliban who have a local profile in Swat. In our submission, this would include [the applicant] if returned to Swat”.

14. In considering the proposition advanced in paragraph 57 immediately above the Tribunal cannot ignore a number of terrorist related incidents cited by the applicant in his written submissions that do not involve police officers, police stations, security personnel or depots and bases controlled by the Pakistani armed forces. These incidents involved the children of members of local VDC’s or local peace committees, civilians, students, a school van and explosions at political rallies in the Swat District, the wider KP Province and larger cities such as Mingora, Peshawar, Islamabad and Karachi as late as July 2023.

15. The Tribunal considers it necessary to draw wide or general conclusions as to the overall safety of those parts of KP Province like the home village of [Village 1], which is located in the Swat District, also known as Swat Valley, in the Malakand Division of Khyber Pakhtunkhwa of the applicant that has not been the subject of terrorist related incidents in recent years and appear to be an oasis of relative safety in the much troubled KP Province.

16. One does not have to be a military genius to understand that the current focus of the TTP may well change for a host of reasons in the near future. That focus could change for a strategic reason, tactical positioning or a need to react and contain internal pressures. The Tribunal cannot rule out such changes. In those circumstances it is a not unreasonable conclusion that the applicant’s home village of [Village 1], the Swat District and the entire KP Province will become zones or areas of danger. Similarly the numbers of terrorism related incidents in major cities whilst absolutely minimal suggests an ongoing capability to inflict damage in the future.

17. In these circumstances and at time of decision the Tribunal concludes the current security situation in Pakistan remains volatile and the entire country, including Swat and the wider KP Province, is in the midst of an increasing spate of attacks. It is self-evident that the applicant cannot avail himself of effective state protection against the harm he fears from the TTP.

    Internal Relocation

18. The applicant’s written submissions addressed the following:

    ·A well-founded fear of persecution under s 36(2)(a) of the Act, the relevant considerations under a s 5J(1)(c) assessment (the 2 stage assessment of a “safe area” anywhere in the receiving country and safe and lawful access for the applicant in reaching the “safe area”, taking into account the applicant’s particular circumstances)[62].

    ·Considering the test set out immediately above the applicant submitted the following factors were relevant matters:

    oRecent events in Afghanistan, and the subsequent reunification of Taliban factions in Pakistan, it is now doubtful whether any region of the country remains entirely safe from sectarian violence.

    oThe Taliban is a pan-national organisation, drawing its membership from various allied factions across Afghanistan, Pakistan and neighbouring countries, including Uzbekistan.

    oThe 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.

    oWhile insurgent violence has been most acute in the border regions [of KP Province], the central districts of Punjab and Sindh have not been spared.

    oUrban centres are generally beset by political and ethnic turmoil. Reports confirm a growing nationalist movement in Sindh, led by militant faction Sindhudesh Revolutionary Army and targeting ethnic Pashtuns in Sindh. In June 2022, ethnic riots broke out throughout Sindh with Sindhi nationalists and their allies targeting Pashtun residents and labourers, causing significant casualties.

    [62] FCS17 v Minister for Home Affairs [2020] FCAFC 68 as cited in Doc ID number 11579052

19. The applicant and his family are well known known in his home village, immediate surrounds and the wider Swat District. This is because of his work in the ANP and more critically the leadership role he played out in his VDC

20. If returned to his home country the applicant faces three choices, firstly to live in his home village where he and his family are figures of public notoriety, secondly to live in other parts of the Swat District remote from his home village where the TTP is re-energised, active and engaged in terrorist type activities or relocate to another part of Pakistan perhaps in a major population centre. In addition he faces the circumstances of his ongoing physical disability that requires attention and is of itself a mark of identification.

21. In these circumstances the Tribunal is faced with a highly vulnerable physically disabled and perhaps psychologically infirm review applicant. The applicant would, most likely, be forced to adjust to life, find accommodation and employment for himself in a place of relocation, in the context where he has no family support in other regions of Pakistan. More likely than not he as a relative stranger to a new population centre would be a person of interest to local residents inclusive of TTP or Taliban supporters or activists.

22. Aspects of the psychological report provided to the Department and disability reports provided to the Tribunal are of concern.

23. For the reasons set out above the Tribunal is of the view the applicant has a well-founded fear of persecution and this relates to all parts of the receiving country.

24. The applicant has been a resident of Australia since mid-2018. The Tribunal is of the view the applicant faces a real chance of persecution in his home region of Swat Valley and in the wider province of KP on account of his role in his VDC, on account of his education role within the ANP, his ethnicity as a Pashtun and his presumed association with members of the VDC and the Pakistani armed forces.

25. The Tribunal is of the view the Taliban capture of Afghanistan has direct implications for the security environment in the border regions of Pakistan – indeed, the entire country. The reunification of previously splintered militant factions under the Taliban banner has led to an increase in sectarian violence throughout the country. There is a real question whether any region of the country might be considered safe from the sectarian threat. In any event, it is clear to the Tribunal that the applicant cannot reasonably relocate given his particular physical and perhaps mental vulnerabilities.

    Conclusion

26. The Tribunal has considered the applicant’s claims and is satisfied that, considered singly, and in aggregate, the reasons advanced by the applicant are sufficient to attract a real chance of serious harm amounting to persecution in Pakistan. After considering all the available evidence, the Tribunal is satisfied the applicant cumulatively does faces a real chance of serious harm on return to Pakistan now or in the reasonably foreseeable future.

27. In order to have a well-founded fear of persecution, the real chance of persecution must also relate to all areas of the receiving country, as per section 5J(1)(c) of the Act. The Tribunal is satisfied the applicant does not have the capacity to stay in his home village, the Swat District or the wider KP Province without violent contact from the Taliban. Having assessed the applicant’s claims separately and cumulatively the Tribunal is satisfied that there is a real chance of persecution for one or more of the reasons mentioned in s5J(1)(a) of the Act in the receiving country.

28. The Tribunal is satisfied the applicant would be subjected to serious harm for reason of his membership of a particular social group as defined these being reasons that meet the provisions of s 5J(1)(a) of the Act if he is removed to Pakistan now or in the reasonably foreseeable future.

29. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.

30. Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act and that the applicant meets the definition of refugee as set out is s 5H of the Act.

31. 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

32. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Mark Bishop

    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.

    …

    
    

January 2022 Paragraph 3.75

[40] DFAT, ‘Country Information Report Pakistan ( )’ (paragraph 3.74), 25 January 2022

[41] The Diplomat, ‘Pakistan’s Anti-Taliban Party on the Hit List Again ( )’, 12 July 2018

February 2023, "Taliban has successfully returned to Khyber Pakhtunkhwa's Swat

Valley: Report", ANI, 8 May 2023, -swat-valley-report20230508121937/