2013742 (Refugee)

2013742 (Refugee) [2024] AATA 3304 (13 June 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2013742
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE OF DECISION:  13 June 2024
DATE CORRIGENDUM
SIGNED:17 June 2024
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

Replace paragraph [12] of the decision with “For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration”.
Denis Dragovic
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2013742
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:13 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 13 June 2024 at 9:58am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Pashtun ethnicity – religion – Sunni Muslim – political opinion – supporter of the Awami National Party (ANP) – target of the Taliban and the army – mental health – suicidal ideation – complementary protection – not reasonable to relocate to Hyderabad – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan. He applied for the visa on 27 July 2019.
The delegate refused to grant the visa on the basis that the applicant’s fears arose from claims of being a target of the Taliban and the army, but the delegate found that his profile was not of a level that would lead the applicant to face a well-founded fear of persecution or trigger Australia’s complementary protection obligations.
The applicant appeared before the Tribunal on 24 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old Pakistani male who arrived in Australia on a student visa in January 2019. He is ethnically Pashtun and adheres to the Sunni tradition of Islam. He was born and raised in Swat, a district in Khyber Pakhtunkhwa (KPK) province, Pakistan.
His family comprises three sisters who all live in Swat and two brothers, one of whom is in [Country 1] and the other who lives with his parents in the home village of [Village 1], Swat Valley. The applicant estimated that the village had a population of [number].
The applicant’s family were involved in agriculture. They have lands which others now manage on their behalf and the family receives income. He said that the income suffices for the family to live off of the profits.
The applicant completed a [degree] in [a major] from a university in Hyderabad, Sindh. He lived in Hyderabad undertaking studies between 2009 and 2014 and then between 2014/2015 and 2017 he would travel regularly to his university but would otherwise be based out of his home in Swat.
The applicant said that his grandfather was a leader of the community, and that his father subsequently took over the role. He claimed that these two men were known as ‘local governors’ and would be responsible for solving problems. His father and grandfather before him would sit with other community leaders as the head of a jirga and only if they could not resolve an issue would the people go to the government. He said that people went to them because government channels took too long. The applicant said that these positions are hereditary within a family, but the incumbents could choose who succeeds them. He added that the army is now highly involved in community problem solving.
He explained the governance system in detail in his statutory declaration:
My family had a very high standing in our community. This was because my grandfather was a Masher of our village. That was a position that existed under our tribal system of governance, the Pashtunwali. Before the British, we used to be governed by tribal rules. Instead of police and Courts, we had a system of Jirgas, where our elders would come together to resolve disputes between the people. The Masher is the head of the village Jirga, like a councillor.
This position is above that of Malik, which also existed under the tribal system. A Malik represents a particular tribe of (sic, or) sub-tribe. Whereas the Masher represents the whole village.
Under the British, the Maliks and Mashers were given a level of government authority and given funding to carry out government functions. This meant that they were associated with a level of government authority in the eyes of the community. The role of Masher was supposed to pass from father to son. Generally it went to the eldest son in the family, but the elders had a choice about which of their sons to choose, because it was a matter of reputation and who would best carry out the task. My father’s eldest brother always had health problems throughout his life. And so my grandfather decided to vest this authority on my father instead.
My father carried out the role of Masher our whole lives. People in our village looked up to come. They would show him a lot of respect. They would come to him with their problems and try to get him to resolve their disputes.
The applicant claims that people expect him to be a leader in his community as he was always seen next to his father. He wrote in his 2024 statement that people in the community would introduce themselves to him and talk about Pashtun issues. He also noted in his written statement that he is the only member of the family who has obtained a university degree which adds further reasons for the community to turn to him.
He said that if he went to Pakistan he would go to Swat. If he went back to the village, the villagers would expect him to play a leadership role, which he would do.
The applicant’s family were claimed to be heavily involved with the Awami National Party (ANP). He recalled that through his father he contributed to the 2008 ANP campaign by distributing flyers and informing people of upcoming public meetings with the ANP candidate.
Based on his actions during the election campaign and being known to Pashtuns in the university in Sindh the applicant was elected [Position 1] for the [Organisation 1]. He claims that in 2010 he was elected [Position 2] of the [Organisation 1]. In this role he was [details deleted]. In 2012 the applicant was elected [Position 3] of the [Organisation 1] for his university. This role involved dealing directly with ANP officials in Hyderabad in anticipation of the 2013 elections. He claims to have then been elected [Position 3] of the [Organisation 1] for the entire district of Hyderabad in 2014 which he held onto through to 2017 despite no longer living in Hyderabad. In this role he had an even greater involvement with party officials. He claimed that he was on a trajectory to become a candidate.
The applicant claims that he was a member of the Village Defence Committee (VDC) from 2014-2016 (or early 2017). After an incident in 2015, described further below, he claimed that he avoided his obligations, attending patrols only when he was required to. He said that before the incident he was more involved including by making posters and writing reports among other things.
The applicant claims that his father received many threats from the Taliban. In 2008 four Taliban came to their family home and threatened them to stop supporting the ANP. He wrote in other submissions that such visits occurred on numerous occasions. In another instance his father received a letter addressed to him which stated, ‘we know that you and your family have been working against us, supporting both the Army and ANP. You must leave this work, or you will face the consequences.’ The applicant claimed that his father knew Idrees Khan, a village elder and head of the VDC, who was murdered by the Taliban and that he had received a similar warning that preceded Idrees’ murder.
In mid-2011, he claimed that his brother was attacked while undertaking night watch duties for the VDC. He described the Taliban opening fire on him and others who were on patrol. He claimed that his brother was shot in the right arm and one person died. After this incident he claims that his brother fled to [Country 1].
The applicant described an incident in January 2014 in Sindh while the applicant was at his university attending a meeting of the [Organisation 1] when a group of unknown people stormed into the office. He claimed that they stabbed him and slashed his abdomen and right knee. In his 2022 statement he described the incident as being an attack on the ANP meeting. He only noted that they spoke Pashto. At the hearing and in his original 2020 statement accompanying his application the applicant said that during the attack they were accusing him of supporting the ANP and cursing his family for assisting the army in Swat. At the hearing he said that a lot of people were displaced from KPK and some who knew his father were living in Hyderabad. The applicant believes that the attack on the [Organisation 1] offices was targeted against him and only after others stood up to fight did they engage with everyone else. He believes that they were intent on killing him.
The applicant claimed that he was involved in an incident while on a VDC night patrol in November 2015. He said that there were four of them patrolling and he heard shots fired. He said that the shots were hitting surfaces near them. They all ran to the nearby bushland. They then called the army checkpoint but were told that the soldiers didn’t have clearance to leave their post. When the firing stopped, they made their way home. After this the applicant returned to Hyderabad for a period at the behest of his father.
The applicant also described problems with the army in Swat when in 2016 they decided to acquire some of the family land for what he described as being at less than market rates. He described his father as organising the community to act collectively to pressure the army as they were not alone in having land being appropriated from them. The applicant claimed to have assisted his father including to organise a walking-protest and also to lobby the civilian leadership but to no avail.
He claims that in March or April 2016 he was randomly attacked by someone who said, ‘you think you are a hero’. After the attack he went to get first aid at a medical store and found out that his nose had been fractured.
The applicant described another incident that occurred in 2017 involving a verbal confrontation during a meeting with the army over the appropriated land when the applicant said that the army and the Taliban are the same. As a result, he was required to report every Friday to a local checkpoint.
The applicant claimed in his 2022 statement that shortly after he left Pakistan the army came to his father and harassed him about the applicant’s whereabouts. He wrote that the local population ‘sent a delegation to the Army checkpoint, telling them whatever problem they had with me, they should not take it out on my father.’
The applicant claims to have joined the Pashtun Tahafuz Movement (PTM) in 2018 when it was first established in his area. He said that the PTM leaders were mainly a part of the ANP. He said that during those early days it was dangerous to criticise the army, but this has changed somewhat since then. At one point he was involved in mobilising participants for a PTM protest.
While in Australia the applicant has been involved with the establishment of an ANP Australia chapter. He claimed that he was contacted by someone who had identified him based on his social media posts. He was elected to a position of [Position 4] in 2022.
The applicant claimed to have maintained very active and political social media pages but shut them down recently due to their impact on his mental health.
I found the applicant to be credible and as such accept his narration of past events though not necessarily of his interpretation of the motivations and meanings behind those events which will be discussed further below.
Country information
We discussed country information about the situation in Swat Valley. I noted that the South Asian Terrorism Portal (SATP) reported that 2023 saw 2 deaths, both security forces, and that in 2022 there were 8 civilians killed: a bus driver and two passengers; a son of a peace committee member; and Idrees Khan, a village elder and head of a peace committee who was killed along three civilians. I noted that these figures align generally with the Pakistan Institute for Peace Studies (PIPS) figures as well.
In the four years prior to 2022 there were two, one, one and zero civilian deaths. In response to this the applicant referenced protests in 2022 and said that if there is peace, why were they protesting. He said that the media can’t enter into Swat suggesting that not all incidents are reported. He said that in 2022 a high-profile person was killed, which aligns with the above SATP report of Idrees Khan, a murder that was widely reported at the time.
The applicant listed other deaths where there were no reports, specifically mentioning an attack in Kabal village that he claimed led to 17 people being killed and noted that this incident wasn’t included in the SATP data inferring that other incidents may not be included. The representative provided submissions on this incident. The incident was an explosion at the Kabal police station in April 2023.
First, the deaths and injuries from this incident are not reflected in the fatality/incident statistics reported by South Asia Terrorism Portal (SATP) or the Pakistani Institute for Peace Studies (PIPS), evidently because authorities did not classify it as a terrorist attack. This classification is questionable, given that Tehreek-e-Jihad Pakistan (TJP) – a supposed front for the TTP – swiftly claimed responsibility for the attack; and also given the unreliability of media reporting in Pakistan (addressed below). Regardless, it claimed the lives of 11 policemen, five detainees and two civilians, and occurred in a counter-terrorism facility.
It is important to note that both SATP and PIPS are non-government organisations, and they obtain their information, as noted in the representative’s submissions, from various sources. There is no evidence that supports the assertion that their assessment of the incident not being terrorist related was driven by a government decision. It is important to avoid making suppositions about circumstances with limited knowledge about them when experts (SATP and PIPS) and government officials indicate otherwise.
The representative made oral submissions at the hearing emphasising the DFAT findings that ‘Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021.’[1] But I noted that this was a relativist assessment in that a security situation deteriorating did not inform me of the level of risk and as such, I could not rely on it in isolation. Instead, I explained that the data provided a better insight especially as there is a considerable amount of attention on Swat Valley with social media and human rights groups monitoring the situation.[2]
[1] DFAT Country Information Report – PAKISTAN - January 2022 at [2.34]
[2] This is evident through Google searches of information Swat Valley
The representative noted that the databases only report deaths and not injuries. We discussed this at the hearing. I accept this but also noted that the Taliban were a movement that was killing opponents as opposed to seeking to harm but not kill by, for example, breaking limbs. The representative rightly noted that while there may be an intent to kill there are incidents where people will be maimed whether from a suicide bomb attack or missed shot. The representative provided province level data from another NGO that monitors violence in Pakistan, Centre for Research and Security Studies. Their table shows KP having about the same number of injuries as fatalities, in other words the total casualties is twice the number of deaths.

The representative referenced her pre-hearing submission and noted that the figures she had were higher than what was presented at the hearing by the member. I noted that her figures are for the entire Khyber Pakhtunkhwa which includes the border areas of Afghanistan that have seen disproportionate levels of violence, a pattern that aligns with the reports, quoted below, of the Emir of the TTP focusing the Taliban on the ‘tribal belt.’
I accept that there is intimidation, and that fear arises simply from the Taliban’s their presence. I also accept that people are maimed in incidents and such injuries, if not involving death are not reported in the district level data of SATP. But members should not allow the perfect to be the enemy of the good. All of the data, even data that doesn’t include injuries contributes to painting a picture of the situation into which the applicant will be returning to.
I noted to the applicant expert analysis that suggests the Tehreek-e-Taliban in Pakistan (TTP) had realigned their tactics and objectives.[3] Specifically, I noted that during peace negotiations in Kabul in 2022 between the TTP and Pakistani government the TTP stressed that the reinstatement of the semiautonomous status of the tribal belt and the implementation of sharia were its key demands. I asked if Swat was considered a part of the tribal belt? He said that the Taliban are not one group and that these disparate groups do not abide by the demands of the central leaders.
[3] >
The expert analysis also noted that by 2021, the leader of the TTP ‘had implemented very significant changes in the TTP’s modus operandi to avoid past violations that were central to its decline. His new approach significantly reduced attacks against civilians and considerably reduced civilian casualties in attacks.’ The applicant said that in [year] [a named individual] was killed and that he was a member of a VDC and from the same neighbourhood as the applicant. He said that when the Taliban took over Afghanistan their power increased.
The representative rightly cautioned the Tribunal in her post-hearing submission against believing every word that the Taliban leadership makes. But I note when giving weight to this information that the data supports the analysis by independent experts whom the Tribunal was relying upon when referencing these comments and that this is an appropriate approach to take.
I summarised the below country information:
The army media wing last month admitted that the presence of "a small number of armed men on a few mountain tops between Swat and Dir has been observed." However, it strongly rejected claims that the TTP has resurfaced in the area.
"Apparently, these individuals sneaked in from Afghanistan to resettle in their native areas. A close watch is being maintained on their limited presence and movement in mountains," the army said in a statement.
"A misperception about the alleged presence of a large number of proscribed organization TTP's armed members in Swat Valley has been created on social media. After confirmation on the ground, these reports have been found to be grossly exaggerated and misleading," the statement added.[4]
[4] >
The army noted that such information indicated that the Taliban could come and go across the border even though the area is claimed to be under the control of the Army.
When considering the entirety of the country information available to the tribunal I find that the general security situation in Swat Valley is safe for residents. This assessment is based on both the quantitative and qualitative evidence provided. It is relevant as a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon, for example, political belief or association. Such an environment may heighten the level of risk to the applicant where otherwise, in peaceful circumstances, the threats to them would be constrained because of the presence and effectiveness of formal and informal justice and security mechanisms.
I now turn my mind to consider the individual circumstances of the applicant.
Considerations
The applicant’s family are supporters of the ANP and the applicant has made contributions at various stages of his life. I note that DFAT assesses that ‘ANP members face a moderate risk of terrorist violence’ with moderate risk being defined as DFAT being ‘aware of sufficient incidents to suggest a pattern of behaviour.’ There is no doubt that there is a pattern over the years of Awami members, particularly high officials being targeted, but I put to the applicant that I hadn’t found any data suggesting that ANP members have been killed over the past several years especially in Swat. He said that such killings were not documented and not reported. He said that because of his mental health he stays away from news reporting on the situation in Pakistan as he can’t tolerate the violence anymore.
Regarding his past involvement in the VDC, the applicant described once being involved in an encounter at night that led to him hiding in bushes until the situation cleared. Considering that it was night, that the applicant was not pursued into the bushes, that there was no follow up by the Taliban despite the applicant remaining in the village, I find that that specific encounter does lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
We discussed whether the applicant would re-join the VDC. He said that he doesn’t want to be involved, but the community and the army wouldn’t let him not be involved. He believes that he would be threatened if he doesn’t become involved. I accept that he would re-join the VDC. I note that DFAT finds members of VDCs face a moderate risk of violence. As noted above, this is indicative of a pattern of attacks, but it does not help in assessing the likelihood of the applicant facing an attack. To make such an assessment it is relevant to refer to the general country information discussed above and note that there have been two peace committee deaths in recent years, including of a village elder, which is indicative of a heightened risk to the applicant.
I asked the applicant how his father’s refusal to hand over the land eight years ago would affect him now. He said that the land was taken and that he doesn’t have an objection to it now. He lamented how the army did nothing when the Taliban came. I asked whether his father was harmed after the land deal. He said that by the time the applicant left Pakistan in 2019, his father was being harassed by the army, but he doesn’t know why. I put to him that the armies regularly rotate and asked why they would continue to harass him.
I noted that his father is still alive despite having a higher profile than the applicant. He said that Pashtunwali is a strict law and that it prevents attacking elders and that his father is safe because of his age. The applicant referenced a few instances where the sons were killed and not the father. He said that he is an educated person and that this distinguishes his situation from his father. I note that while his father is currently elderly, he wasn’t always so. Yet, he survived through far more turbulent times than the applicant would be returning to. This may be indicative of his father’s luck or other factors and so I hesitate to place much weight on this evidence.
I asked about his brother who is a part of the merchant navy but returns to their home in Swat. The applicant said that his brother doesn’t have the ability to become a leader. I asked if the Taliban know who can become a leader and pick and choose which son to target. He said that he believes so, but he added that his brother does not stay long in the village. I asked about the risks his sister’s husbands face. He said that if it wasn’t for his father and leadership role, he wouldn’t face the harm.
When considering the overall risk, the applicant faces I note that there is a confluence of factors that impact any such assessment. The applicant’s father is in his [age] and may not be able to continue in his role as the village head for much longer. I accept that the applicant would be expected to take on the role. As noted from the recent deaths of those associated with peace committees, this can be a perilous situation as some are targeted. The applicant has a history of political activism with the ANP, a political party that has considerable levels of mutual animosity with the Taliban. This would add to his profile and level of risk. It is also clear from the applicant’s past behaviour that he does not have an affinity for the army and would most likely distance himself from them. While I do not accept that he faces any harm from the army, a sour relationship with them risks weakening any protection he may otherwise have been able to rely upon. When considered overall, I find that the applicant faces a real chance of serious harm into the reasonably foreseeable future for reasons of his political opinion were he to return to Swat Valley.
Relocation
I asked the applicant why he couldn’t move to another location in Pakistan. He said that there is a lot of discrimination in Pakistan and that people look at Pashtuns as terrorists. He said that every time you rent a place you need to register with the police. When asked what’s wrong with that, he asked why others wouldn’t need to as well, such as Punjabi people. He acknowledged that there wasn’t a problem with the process of registration, but rather that he would be targeted by the police who always follow up with the Pashtuns when something happens. He said that the Taliban wear Pashtun traditional clothes inferring that this conflates in people’s minds Pashtuns with the Taliban.
I suggested to him that Hyderabad is safe noting the level of security incidents (two civilian deaths since 2015, being one in each of 2017 and 2018).[5] The applicant mentioned how in 2019 and 2020 there was a move in Sindh to push out tribes who are not from there. He referenced in his submissions instances of Pashtuns being pulled from their homes and shops and being called Afghans and terrorists in reference to riots in 2022 following the killing of a Sindhi by a Pashtun.[6]
[5] >
With regards to the security situation in Sindh, the representative brought the Tribunal’s attention to her submission in which it referenced 68 incidents in Sindh with 73 fatalities and 87 injuries. She argued that this was significant. I noted that it should not be taken out of context and that the size of the population is relevant as are other circumstances. I noted that Sindh is a large province and as with KPK there are different areas that have different security profiles which for Sindh would distinguish Karachi from Hyderabad with the former being a particularly volatile area.
The applicant has described him and his family’s commitment to the ANP. The applicant was involved in the [party] in Hyderabad. I accept that the applicant would continue to involve himself in politics. But noting the security situation has seen zero civilian deaths from terrorist activities and the risk to ANP members is from the Taliban then the data supports a view that there is a low risk to ANP members in Hyderabad.
I acknowledge that the applicant had been harmed in Hyderabad in the past, ten years ago. He explained that it arose from people who knew his family and had been displaced from Swat. I find this to have been a low probability event, but nevertheless accept that it did occur.
When considering the reasonably foreseeable future, I also take into account that ten years have passed. This is relevant as the people who knew of him and acted against him may have left, they may have resiled from violence or they may have been killed. While others from Swat Valley may cross paths with him in Hyderabad into the future it would be a low probability that they would not only know of the applicant and his father, that they would be willing to harm him and that they would be willing to do so despite the possible risks to themselves. When considered as a whole, that the general security situation is safe, that the applicant’s past experience in Hyderabad involved a single low probability event and that ten years have passed, I find that he does not face a real chance of serious harm into the reasonably foreseeable future were he to relocate to Hyderabad.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
Engaging with the above and considering that Hyderabad is a city and noting that there have been no reports available to the Tribunal that suggest that those residents lack safe access or face an inability to access safe human habitation, I find that it is habitable and accessible to the applicant.
For this reason, I find that the applicant does not have a well-founded fear of persecution.
Having found that the applicant has not met the threshold for protection under s 36(2)(a), I now turn my mind to complementary protection. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
For the same reasons given above when considering relocation to Hyderabad I find that the applicant does not face a real risk of significant harm in Hyderabad.
I now turn my mind to consider whether it would be reasonable for the applicant to relocate to Hyderabad.
I put to the applicant that he speaks the language, he lived there before for years, he rented a house there (for his family when they were displaced from Swat), he has friendships there and as such he could relocate there. He responded that he could live anywhere in Pakistan. But reiterated his security risks. He referenced back to the circumstances of the attack in 2014 and that while living in Hyderabad the police would always be checking on Pashtuns.
We discussed employment opportunities. I suggested that people with a higher education such as the applicant would be able to find work as unemployment rates are low.[7] He asked rhetorically who would give him a job? He said that he can’t work for the Sindhi government as they only employ people from that province. I asked if he could work in the private sector. He said that he is a Pashtun, and no one would give him a job. I suggested that he could work as a labourer. He said that he has a very high level of education and status, and he shouldn’t be expected to undertake labouring work, he said that having had to undertake such work in Australia contributed to his mental health deteriorating.
[7] >
I noted to the applicant that he was claiming that he would be pressured by the community in Swat to take on a leadership role within the village and that he had indicated that he would do that and yet he was claiming that he could not relocate because his mental health situation would prevent him from being able to find work. He said that it is in his blood to fight for Pashtun rights.
I note that the applicant continues to receive an income from his family business.
The applicant, through various submissions, described the discrimination he encountered in Hyderabad. In his 2022 statement he wrote of how following the 2014 attack he and his colleagues were rushed to a hospital, but the staff provided only basic treatment and otherwise told them that they needed to make a police report. He said that the police were dismissive telling them that they should have known that there is crime in Hyderabad and if they didn’t like it they could return to their home area.
The applicant’s mental health and relocation
The most recent structured self-reporting of the applicant’s mental health was provided in his 2024 statement. He wrote:
Recently, in February 2024, I experienced a mental breakdown brought on by the stress of preparing my case for the Tribunal…Then, I saw the coverage of the stabbings that happened in Sydney on 13 and 15 April 2024. I was very badly triggered by these events, because of the stabbing I experienced in Hyderabad in 2014. It felt like it happened to me. I was deeply disturbed by it and went deeper into depression, to the point that I became suicidal…When I was suicidal, I started giving things away to my friends because I did not intend to keep living. I was also feeling shame that my political activities in Australia were putting my family in danger.
Professional medical information about the applicant’s mental health was available from two letters by his counsellor at [Organisation 2], a letter from a psychiatrist, the discharge report from [a] Hospital Emergency Department and a letter from his GP.
The applicant’s mental health in the context of relocation is relevant in three ways.
a.Whether the applicant will have access to services and as such be able to manage his symptoms
b.Whether the applicant will be discriminated against and as a result face hardship
c.How his mental health may impact his ability to relocate in the context of his symptoms.
We discussed the mental health services available in Pakistan which was raised by the representative in her submissions. He said that there are few psychiatrists. I accept this. I note that the relative lack of services arising from a non-discriminatorily different standard of living has generally been accepted to not be a basis upon which Australia’s protection obligations are triggered. But in the context of the reasonableness of relocation what constitutes as relevant is broader. What is reasonable as in practicable as far as the applicant’s access to mental health services is access to the same level of services that others in the community have. There were no claims made that the applicant would not have access to services differently to other Pakistanis in Hyderabad or anywhere in Pakistan.
As to whether the applicant would face discrimination, this was discussed with the applicant in the context of figures available to the Tribunal from at least one study that suggests that among Karachi residents about 40% of the population have a similar diagnosis as the applicant.[8] I asked how he would be harmed or targeted differently to them if such a large portion of the population have similar diagnosis. He said that while people in Karachi have those mental health challenges, they don’t have the additional fears that he has, listing the army and ISI in addition to the Taliban.
[8] Karachi Mental Health Report (KMHR), A collaborative project of Dept. of Psychiatry, Aga Khan University and Aman Foundation, Karachi, 2012 type="1">
The representative took issue in post hearing submissions with the suitability of the report and how it was used. The submission stated:
The source of the information identified by the Tribunal is a report analysing the prevalence in Karachi of “common mental disorders (CMDs)”, defined as including “states of mild to moderate depression and anxiety.” It does not, as premised by the Tribunal, refer to diagnoses. Without going further, the report is of limited relevance to [the applicant’s] circumstances, as he is not only diagnosed with several conditions, but his diagnoses are serious and not “mild to moderate.”
To be parsing the term ‘diagnosis’ misses the point. As the literature survey in the report showed, whether it was by way of a ‘cross-sectional observational systemic study on ambulatory patients’ or a randomly selected cross-sectional study or other methodologies adopted by experts in the field, the outcome was consistent, namely that a large portion of the Karachi population, about a third when averaging out the findings of twenty studies, had anxiety and depressive disorders regardless of whether each individual had been diagnosed. The relevance is that it informs the societal context to which the applicant would be returning to.
The second limb of the representative’s passage quoted above which notes that the applicant’s condition is serious whereas those identified in the report are ‘mild to moderate’ is problematic. It is problematic to attempt to compare categories of matters which were never established to be compared. I note that the latest report by the applicant’s counsellor states, ‘he does not meet the full diagnostic criteria for Major Depressive Disorder currently.’ Does that then make his illness moderate? Or maybe mild? Another psychologist provided a ‘diagnostic impression’ as opposed to a diagnosis that listed the applicant as having Major Depressive Disorder, because it is only an impression should it be ignored?
It is not for the Tribunal or representative to be making such judgements as they require expert knowledge which has not been made available to the Tribunal, instead, what is relevant and within the purview of a decision-maker is to assess the overall societal context into which the applicant would be entering if he were to relocate. The societal context is in part represented by a large portion of the population having some mental health challenges but as the representative put forward it is also relevant that attempted suicide is not welcomed and is considered a criminal act as well as there being strong religious and social stigma against suicidal behaviour.[9]
[9] ibid p14
The applicant wrote in his 2022 statement that people with mental health issues don’t seek help, that they are considered insane and dangerous. He said that people believe that they are possessed by spirits and are socially rejected, can’t marry, and are shunned from their families. While this was the applicant’s view of the situation in his village in Swat Valley district, I accept that to some lesser degree there would be similar sentiments in Hyderabad.
Noting this societal context, the aspects of the applicant’s mental health that are relevant from the perspective of facing some sort of hardship arising from societal discrimination are those that would be visible and known to the community.
In reviewing the applicant’s mental health reports that were presented, these include:
a.Verbalised suicidal ideation. The applicant attended [a] Hospital emergency unit because he had verbalised to a friend suicidal ideation.
b.Accessing medication: The applicant is reported to be on two antidepressants.
While the reports identify other behaviour possibly resulting from his mental state and psychosomatic ailments, these are general and not necessarily identifiable by another person as being mental health related. For example, in the [Organisation 2] report he is identified as having ‘skin issues’ and ‘hair loss’ due to stress.
In considering whether it is reasonable for the applicant to relocate in the context of him having to purchase antidepressants I find that it is because the purchase of medicine can be done from a pharmacy away from the area where the applicant is known if there is any concern about the confidentiality of his purchase by a shop assistant in his locality.
With regards to suicidal ideation, the applicant is reported to have indicated to a friend that he would be ending his life in early 2024. This led to the applicant being taken to [Emergency]. The report notes that he is at a ‘moderate’ risk to himself. Finding that the applicant’s mental health would not change into the near future I find that he would have suicidal ideation into the future and that it would become known. There is no information before me as to what the community or authorities would do other than that any such behaviour is a criminal act and that it carries a stigma.
The third element to consider about his mental health is how it will impact his ability to relocate. The applicant has continued to work in Australia despite his mental health challenges, but he has become more socially isolated. He has a ‘heightened irritability’ towards others. The [Organisation 2] Counsellor concludes her assessment of the applicant’s psychosocial functioning by writing:
He continues to feel a strong sense of shame about his current social functioning and his avoidance of others. He explained that prior to arriving in Australia he was a man who took pride in being able to communicate and interact with others, and strongly believed in helping his community. He has vocalised that his sense of identity and confidence have been lost, along with any self-belief in rebuilding a life in Australia equal to his prior standing in Pakistan. Due to his poor memory and inability to focus, he believes he would not be able to complete any education and that he will struggle with interacting with other students. For this reason, he has stopped pursuing any further studies or having his previous qualifications accredited.
While the applicant had successfully relocated to Hyderabad in the past, including having managed to secure a rental for his fleeing family and established himself politically within the ANP it was at a time when he was not burdened by mental health challenges. Returning now would be very different. He does not have family support in Hyderabad. As such he would need to rely on others and his own abilities to relocate. It has been nearly ten years since he lived there and many of his contacts, being Pashtuns, may have moved on leaving him without support. Even were he to know someone, would they house him knowing his mental health condition, and if so, for how long? While someone without mental health ailments would be able to relocate, as the applicant himself inferred noting that he could live anywhere in Pakistan, the practical elements of relocating are made much harder due to the specific health condition the applicant is currently grappling with. For these reasons, when considering the reasonableness of relocation, I place considerable weight on his mental health.
I have also considered the applicant’s claims of bearing the burden of expectations for him to undertake a leadership role among his tribe. By moving to Hyderabad, he would be unable to fulfil this role. The applicant did not claim to face hardship as a result of not being able to fulfil his role while in Australia and as distance is the common denominator it is reasonable to assume that he would not face any hardship being unable to fulfil it while living in Hyderabad. But on the other hand, being within reach to his community may lead to greater pressure on him to regularly return or even to permanently move. This would weigh heavily on his mental health as well as potentially lead to him taking risks to attend events in Swat.
In considering the reasonableness of relocation I note that the applicant has lived in Hyderabad for several years as well as having regularly visited the city through to 2017. He has the knowledge of integrating into the community by having in the past done so not only through his university but also his political activities. The applicant acknowledged that he could live anywhere in Pakistan, which I take on face value and place considerable weight on. While I accept it would be difficult for the applicant to initially find employment, especially if he refuses to consider work that he thinks unsuitable, he has access to income that his family receives from their properties.
The applicant’s mental health, though, is an issue that I do not gloss over lightly. He has struggled with the burden of mental health challenges while living in Australia. It would be speculative to determine how a return to Pakistan would impact his mental health as there are protective factors such as being among his community and close to his culture but also risk factors such as an underlying fear arising from past harm and a diminished level of access to professional support. I have noted above the difficulties that he would encounter in relocating to Hyderabad and find that they would be acute during the first few months or year, exacerbated by the fact that he would not have family who would accept the symptoms of his condition and provide the initial support he requires.
When considering relocation and all of the matters discussed above but recognising the nature of the applicant’s current mental health, I find that it would not be practicable and as such not reasonable for the applicant to relocate to Hyderabad. As such the exclusion under s 36(2B)(a) is not triggered.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Denis Dragovic
Deputy President

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.
…

uploads/2015/11/KMHR-Final-March-2013.docx

[2024] AATA 3304

13 June 2024

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