2014138 (Refugee)

[2021] AATA 4747

2014138 (Refugee) [2021] AATA 4747 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014138

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Anne Grant

DATE:15 October 2021

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 15 October 2021 at 4:18pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – failure to consider relevant claim – political opinion – anti-Taliban – particular social group – supporter and member of the Awami National Party (ANP) – ANP campaign worker – participation in the Village Defence Committee (VDC) – emergence of Taliban rule in Afghanistan – state protection – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Respondents S152/2003 [20040 HCA 18

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Pakistan and applied for the visa on 12 December 2013.  The delegate refused to grant the visa on 12 August 2014.  The applicant lodged a request for review of the decision with the Refugee Review Tribunal (as it then was) on 22 August 2014, in matter number 1414393.  The RRT was amalgamated with and became one of the divisions of the Administrative Appeals Tribunal from 1 July 2015.  On 17 March 2016, Member Giles decided to affirm the decision under review. 

3. The applicant sought judicial review of the decision made by Member Giles.  He was unsuccessful at the Federal Circuit Court on 24 April 2019.  However, the applicant sought further review in the Federal Court and [in] August 2020, Bromberg J in [case citation redacted] allowed the applicant’s appeal and remitted the matter back to the Tribunal for determination according to law.   In summary, the Courts’ reason for finding a jurisdictional error was that it found the member had misconstrued and failed to consider the applicant’s claim to fear harm from increased violence in the context of future elections in Pakistan.

4. The applicant appeared before the Tribunal to give evidence and present arguments on 12 October 2021.  He was represented by [Ms A] from [Law Firm 1].  The hearing was conducted using the Microsoft Teams Application with all present participating by video. The hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. 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.

10. The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Pakistan, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The applicant’s claims and evidence

11. I have before me the applicant’s written claims (as outlined in a statutory declaration accompanying his application for protection), the documents he provided in support of his claims, the delegate’s decision in which he outlines the information given during his interview with the applicant and I have also had the opportunity to listen to the recording of the first RRT hearing conducted by Member Giles in 2016.  I note that the applicant’s evidence before Member Giles was generally consistent with the information in his written claims, as outlined in his statutory declaration, and as given to the delegate. 

12. On 5 October 2021, the applicant provided a written submission from his migration agents, a statutory declaration, and a copy of his medical history.

13. On 11 October 2021, additional documents were received from the applicant as follows: 

    ·Letter from [Mr B], [office bearer] of the Awami National Party (ANP) Teshil Kabal SWAT & [office bearer], Village Defence Committee (VDC) [Village 1], SWAT KPK Pakistan.

    ·[Country 1] residency document for [Mr C]

    ·Medical report from [Dr D], Counsellor-Advocate at [Organisation 1] dated 11 October 2021.

14. The applicant’s claims and evidence are, in summary as follows: 

    a)He is from [Village 1] in SWAT, Khyber Pakhtunkhwa.  He is a Pashtun and speaks Pashto and some Urdu and little English.  He is married and his wife lives with his mother in [Village 1].  His brother [Mr C] lives in [Country 1] where he successfully sought protection after he had been targeted by the Taliban in around 2011.    His brother [Mr E] lives in a nearby village with his wife, their children, and her family.  He used to farm the family land but has now leased the farmland to a different family.  The applicant said he did this because [Mr E] was worried that it would be too easy for the Pakistani Taliban – Tehreek-e-Taliban Pakistan (the TTP) to kill him if he worked on the farm.  He no longer works.  The applicant’s third brother [Mr F] is now in Australia seeking his own protection visa.  The applicant claims he came as a student but fled Pakistan after being present during a suicide bombing attack in 2016 where members of the ANP were killed. His sisters are all married and live with the family of their husbands.

    b)The applicant’s family has for generations been supporters of and members of the Awami National Party (ANP). He claims that they are the party who most strongly oppose the TTP and extremists in Pakistan and that they work the hardest for the Pashtun community of SWAT.  He himself had been involved in the student wing of the ANP, the Pakhtoon Student Federation (PSF), before joining the ANP as an adult. He has also provided his ANP membership card (and that of his father) in support of his application.

    c)The applicant’s father was killed in 2009 by the TTP.  The applicant does not claim to know exactly why they chose to kill him, but the reason given was because he was considered to be working with the Army against the TTP.  The applicant claims that his father had been a passionate supporter of the ANP and had campaigned for them in elections.  He was not a party official or anything like that.  The applicant described how after his father was killed, the family was displaced to Peshawar (with many others) during the major military operation which defeated the TTP in SWAT in 2009/2010.  The family returned to SWAT valley in early 2010.

    d)The applicant claims to have served the ANP by gathering people for rallies, getting people to vote, and encouraging people to vote for party members at elections. He helped a lot in the 2008 election and last helped out in the election in 2013 but had to leave for work (on a ship as a [Occupation 1]) before the election. He knew that his party-political activity made him a target of the Taliban.  He claims he was well known as a strong supporter of the ANP in his village and area.  The applicant claims that many members and party officials have been targeted (including fatally) over many years because the Taliban sees them as opposed to the religious fundamentalist ideology promoted by the Taliban.  Even though his party support and activities put him in danger, he undertook these activities because he strongly supports everything the ANP stands for. All of his brothers have also been ANP members.  [Mr C] and the applicant were the most politically active.  [Mr E] was the least active, though he is still a member of the Party and still fears being targeted by the Taliban. 

    e)The applicant commenced working as a [Occupation 1] in around 2004.  He has been on ships ‘at sea’ for lengthy journeys to various countries as follows: 

    · 8 months in 2004;

    · 14 months from September 05 to November 2006;

    · 11 months from February 2008 to January 2009;

    · 11 months from September 2010 to August 2011;

    · 4 months from May 2012 to September 2012 and

    · 8 months from February 2013 until he deserted the ship [in] October 2013 in [City 1], Western Australia. 

    f)The applicant’s evidence is that whenever he was in Pakistan, he returned to SWAT.  As noted above, he was in the country during the displacement of the SWAT community during the military actions in late 2009, early 2010.  In that period, the family was displaced to Peshawar.  He also had short periods in Karachi waiting to fly to his ship assignments.  Apart from those periods he has spent his whole life in [Village 1], where he would assist on the family farm.

    g)When the family returned from Peshawar after their displacement, he became a member of the Village Defence Committee, (VDC) originally set up as a Lashkar aimed at protecting the village from TTP incursions or attacks.  His brother [Mr C] was also a member of the VDC.  He has provided evidence of his involvement in the VDC, namely his membership card and confirming letters from VDC [office bearer]. During his hearings, the applicant freely gave information about the VDC management and his role in night patrols.  He claims that he also assisted by keeping the local mosque secure – checking identities of people attending if they were not recognised by the applicant and his fellow VDC members.  He described how he participated in night patrols every 15 days and also how he identified two specific local men who had received training from and were members of the Taliban.  He reported them to the Army.  One of them was later killed and the other’s fate he does not know.  It was known in the village that he had identified these Taliban members.  The applicant has also provided a letter referring to his requirement for Friday duty at the local mosque and he confirmed this was a role he undertook to keep the mosque safe.

    h)The applicant has presented a letter from [Mr B], the [office bearer] of the Awami National Party [Town 1] and also the [office bearer] of the VDC [Village 1] Swat KPK, Pakistan.  In this letter, [Mr B] reports that he knows the applicant personally.  He adds “He and his family have been active workers/members of our political Party (Awami National Party) [Village 1] District Swat KPK Pakistan till his escape to Australia.  He escaped due to threat to his life from Terrorists, the Religious Sect called Taliban, the Arch Enemies of our political party.”  He refers to the applicant’s brother, [Mr C], and his application for protection in [Country 1] also due to the threats to his life by the Taliban.  He adds “[The applicant] played his role very actively and bravely as worker for the cause of our party and has been suffered a lot physically, financially and politically during the swat crises and due to enmity with Taliban, the Terrorists.  He and his Family have lost much because of association with Awami National Party and their strong stand against Taliban.”  He confirms that the applicant was a member of the VDC under his [office] ‘which is also a cause of threat from Taliban to his life as VDC is working in collaboration with Pak Army against Taliban.’  [Mr B] gives his opinion that the applicant’s life is in danger if he returns to Pakistan because there is still a threat ‘due to new recent hold of Taliban in Afghanistan in our neighbourhood which directly affected us again.’ [Mr B] says that he himself has received a number of threats recently.

    i)The applicant claims that his local politicians had been members of the ANP, but in the general election of 2013, they lost control of the SWAT seats to politicians from the new government.  The applicant indicated that he was at sea when that happened but he had been helping out with the campaign prior to departure.  He was saddened by their loss of seats because he felt they were best placed to assist the Pashtun community of SWAT.  In his view, the loss of those seats emboldened the TTP in SWAT against their ‘traditional enemies’.  The applicant did not agree that there had been any reduction in ongoing threat to VDC and ANP members over the years since 2013, and was able to refer to several party and ordinary members (and VDC members) killed over many years, including those killed in the different attacks in which his brothers had been present.  His view is that the TTP will continue to attack any opposition in SWAT to weaken the ANP and prevent them from regaining control of the seats in the region.  Each time there’s an election, the threat will be heightened.

    j)The applicant confirmed that he would continue to participate in the ANP by being an active, campaigning member and also in the VDC as necessary if he returns to Pakistan.   He would do so because he considers that is his duty, even though he believes doing so will continue and further increase the risk of harm he faces from the TTP.  The applicant said that he was always well aware that he faced a real chance of being harmed or killed by the TTP.  It has just been an ever-present knowledge.  So many have been murdered by them, including his father.  Both [Mr C] and [Mr F] have been present (though unharmed physically) in TTP attacks. The applicant has heard and accepts that he will be targeted and killed by the TTP if he returns due to his past activities and the fact that he is known in his village region.

    k)The applicant claims that he had been told about a letter threatening to kill him from the TTP that had been received in his name in around 2011.  I noted that both the delegate and Member Giles had been concerned about his terminology in ‘dismissing’ this threat letter he received in 2011 – and the fact that he said in his statutory declaration that ‘he didn’t take it seriously’.  I asked him to explain what he meant by saying this, given that he had told me that he had always felt a risk of harm, and his own father had been killed by the Taliban, suggesting that a person would take such a threat very seriously indeed.  The applicant explained that he didn’t feel that the letter added anything to his fear of harm. That is, it ‘wasn’t saying anything he didn’t already know’.  I consider that the applicant was trying to explain that he did not mean to suggest from this wording that he thought it was not a serious threat – rather that it was just a confirmation of what he already knew.  It wasn’t a new threat or even an escalation.

    l)The applicant claims that things did change when he heard from his family in 2013 that he had been listed, with [Mr C], to be killed on a list by the Taliban.   When that Taliban ‘target list’ was published, that was when he felt that the situation had become so dangerous that he could no longer return to Pakistan.  He considered that the TTP were bold and more powerful than they had been before then.  Now the ANP had no political power in the region.  He felt that it had become too dangerous for him to return – and this was confirmed by his family and friends.  He believed that the TTP would not give him any more warnings – they would kill him as soon as they saw him and this was why he decided to desert ship in [City 1].   He said that this time, he knew it was more serious, because they killed many people at that time.

15. The applicant has confirmed at every stage of the review process (including in his written claims, the interview with the delegate, in the first hearing with Member Giles and in the hearing before me that he was a member of the ANP (the Awami National Party).  He has produced a photo of himself with [Mr G], an ANP leader who was killed by the Taliban in support of his claims.  The applicant explains that [Mr G] was from the applicant’s village, an active ANP organiser.   

16. In 2016 when the applicant gave evidence before the first Tribunal, the applicant said that two of his brothers [Mr E] and [Mr F] were living with his mother and wife in [Village 1].  One of his brothers ([Mr C]) was in [Country 1], having been granted a protection visa or right to reside there.  At the hearing, he indicated that [Mr F] was now in Australia with his own application for protection and [Mr C] remained in [Country 1].  His brother [Mr E] was now living in a nearby village with his in-laws.  He had stopped working on the family farm because he was afraid that he would be too easily targeted by the Taliban.  The family now leased the land to someone else.  [Mr E] didn’t currently have any work.  The applicant said that [Mr E] is also a member of the ANP but not very involved or active.  He is less involved than the applicant was and also less than [Mr C] was.  According to the applicant, he has young children and the implication from the applicant’s evidence is that ensuring the safety of his family has motivated [Mr E]’s lower involvement in political action in [Village 1], his decision to lease out the land and live in a different village.

1. Prior to the hearing, the applicant’s representative has provided a number of medical reports and opinions which confirm that the applicant suffers from Post-Traumatic Stress Disorder, major depression, and anxiety.  The applicant continues to seek counselling and also take medication but said that he still feels distress and has difficulties with his memory.  He does not believe he could receive the care he needs in Pakistan and fears his mental health would worsen if he were to return, due to the threats and hardships he would face.  The medical report from [Dr D] confirms that the applicant suffers from severe PTSD, depression, and anxiety.  She also confirms that in her opinion, him returning to Pakistan would be very difficult for him.   She refers to him enduring constant triggers in Pakistan and says his symptoms would be heightened, with the presence of violence being closer having a de-stabilising effect on him.  [Dr D] notes that the applicant’s mental health remains vulnerable in Australia and that it would deteriorate further if he was to return to Pakistan.

2. I am satisfied that the applicant is firmly of the view that his membership of the ANP, his role as an active party member and his involvement in the VDC (and in his reporting of two Taliban members to the armed forces) all combine to give him a profile which makes it certain that he will be targeted and killed if he returns to Pakistan, now or in the reasonably foreseeable future.  The applicant has a genuine, subjective fear of being killed by the TTP if he returns to Pakistan.

3. After considering the applicant’s evidence at various stages, including as recorded in the delegate’s decision, as given in the hearing with Member Giles in 2016, in his written claims and declarations, his agent’s submissions and also the information and evidence he gave to me at hearing, I found the applicant to have provided consistent, forthright and detailed evidence and information about his claims throughout.   He has provided documents and letters of support which are consistent with his claims.  In this case, I have no cause to doubt the applicant’s consistent evidence about his experiences, his history, and his fear of harm.

4. I accept that the applicant has been a long term member of the ANP in [Village 1].  I accept that he campaigned actively for the party and that his involvement was well known in his region and village.  I accept that various people affiliated with the ANP, some of whom were well known to him, have been targeted and killed or injured by TTP attacks over the past two decades.  I accept that his father was killed by the Taliban in 2009 because he was seen as an enemy of the extremists and to have worked with the army.    I accept that his brother [Mr C] was attacked but luckily escaped unharmed, though two others were killed in that targeted attack against ANP members.  I accept his evidence at hearing that his brother [Mr F] was present during another attack in 2016 in which 2 members of the ANP were murdered.

5. I accept that the applicant also participated in the Village Defence Committee covering the security for part of his village of [Village 1], participating in night patrols to protect the village from Taliban incursions and mosque security. I accept that the applicant actively participated in village life and politics whenever he was home in Pakistan even though he spent extended periods at sea working in the period from 2004 to 2013.

6. I accept the medical information before me which demonstrates that the applicant suffers from post-traumatic stress disorder, major depression, and anxiety.  I accept that he is receiving ongoing pharmacological and counselling support for his conditions but he continues to suffer disturbed sleep, depression, and anxiety.  Based on the opinion of his psychologist, I accept that it is reasonable to expect that if the applicant returns to Pakistan, his mental health will deteriorate significantly.   

7. The essential and significant reasons for the harms feared by the applicant in Pakistan are his political opinion (being opposed to the ideology of the Taliban) and his membership of the particular social group of ANP campaign workers, members and supporters in [Village 1] and also of the particular social group of VDC members in [Village 1].  I accept that the applicant fears being targeted and killed for these convention reasons.

8. I have considered the information in the most recent Department of Foreign Affairs and Trade Country Information Report on Pakistan (issued 20 February 2019.)  I have had regard to the following particular parts of that report:

   2.66 The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

   2.67 Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

   2.68 Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

   2.69 The security situation varies across the country, however, and militant attacks can occur anywhere. Baluchistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

   2.70  Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community (see Religion and Ahmadis). Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.

   2.71  Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and anti-Shia sectarian groups).

   2.72  The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.

   And also: 

   2.80 In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).

   2.81 Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations (see Judiciary, and Military and Intelligence Services). Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services).

   2.82 Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).

9. I have also given consideration to the Federal Court’s decision and the reason for remitting the decision of the former Tribunal in this case.  I note the court’s comments extracted from paragraphs 36 and 37 of its reasons for decision:

   As part of his claim that he feared that he may suffer significant harm as an ANP activist involved in forthcoming elections in his home region, the appellant made a clearly articulated, substantial or significant representation that an assessment of future risk of harm to him should not be restricted to risk assessments confined to a non-election period but needed to take into account the likely heightened risk to him as an ANP activist campaigning during the forthcoming election period.  To properly perform its statutory task, the Tribunal was required to engage in “an active intellectual process” (Omar at [37]) with the second representation.

   …Why, it may be asked, in a region prone to politically motivated violence, is it not reasonable to expect that politically motivated violence will likely increase during election campaigns when political activity will likely be at its cyclical peak? 

10. DFAT’s report also suggests that because the TTP’s support base is predominately Pashtun, Army operations against the TTP have led to official discrimination and racial profiling of the Pashtun community throughout the country.  “In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’”[1]

    [1] DFAT report at 3.8. and 3.10.

11. In relation to the Awami National Party, DFAT noted that it faced considerable electoral violence in 2018 because it has a heavy Pashtun support base and is strongly anti-Taliban. The most recent report contains the following information about the Awami National Party (ANP): 

    3.170  ANP is a Pashtun nationalist, secular political party that promotes opposition to the TTP, with headquarters in Peshawar, Khyber Pakhtunkhwa. ANP’s major support bases are in Khyber Pakhtunkhwa and Balochistan. ANP formed in 1986 as a successor to the National Awami Party, and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party.

    3.171  Like other parties in Pakistan, the ANP can be affected by politically motivated violence. It is also the target of violence from militant groups. The ANP is anti-Taliban, and TTP militants have attacked ANP members due to its secular ideology, support for the military and counter-insurgency operations in the former FATA and Khyber Pakhtunkhwa, and work to improve the Pakistan-Afghanistan bilateral relationship. ANP claims to have lost 1000 members to acts of terrorism. However restrictions on media reporting in the former FATA and Khyber Pakhtunkhwa (see Media) may mean some incidents—particularly those involving low-level officials—are not reported.

    3.172  In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician Haroon Bilour. Bilour was a Provincial Assembly candidate for the July 25 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via Skype. On 11 April 2016, militants killed an ANP leader in Swat, Khyber Pakhtunkhwa.

    3.173  In 2018, ANP Pashtuns were also involved in in large-scale demonstrations coordinated by PTM (see Pashtuns) seeking protection against state oppression and human rights abuses against Pashtuns in the tribal regions of Pakistan.

    3.174  DFAT assesses that ANP members face a moderate risk, and ANP leaders face a moderate to high risk of terrorist related violence based on ANP’s opposition to the TTP. Discrimination and violence against ANP members can also be affected by popular perceptions of the Pakistan-Afghanistan bilateral relationship (see assessments under Pashtuns and Afghan Refugees).

12. As reflected in the country information, the security situation in Pakistan is volatile and political violence ebbs and flows during the election cycles.  Generally speaking, groups aligned with those who vie for or hold political power in a region are understandably emboldened when their candidates of choice gain or regain power.  The 2013 election lead to a seismic shift in the applicant’s region where his local members of parliament were unseated and I accept that this shifted the power balance substantially at that time.  The applicant confirmed that the Taliban were pleased to see the ANP ousted in the region and emboldened to pursue their long pattern of targeting ANP politicians, former politicians and members.  I consider that this shift in the power dynamic (particularly where ANP members had already experienced attacks from the Taliban even whilst in power) explains why the applicant took the threat and his naming as a target in 2013 so much more seriously than he had previously taken threats, leading to his forming a belief that he was unable to safely return to Pakistan and that he would certainly be killed if he did so.

13. I accept as consistent with the country information the applicant’s evidence that he had always accepted a level of risk from the TTP in his party activities and also in his VDC role in his home area.  He accepted that risk and that he might be targeted or caught up in political violence due to his involvement.

14. I accept the applicant’s explanation that in 2011, when he was told about a threat letter in his name, he was able to shrug it off as ‘just telling him something he already knew’.  I accept that what he meant by saying he ‘didn’t take it seriously’ was that it was just a statement of the obvious – not actually a new threat or an escalation at that time. As noted above, the threat in 2013 was made in a different context to those he had previously faced and he had reason to believe that he had been specifically and publicly recognised as a Taliban enemy at that time and also that they were politically and practically in an ascendant power position in his home community for the first time in many years.   The applicant’s submissions and the country information generally suggest that they remain so and may be further emboldened by the recent Taliban reinstatement in Afghanistan after the departure of foreign forces during the current year. 

15. I have also given some consideration to this recent shift in Afghan politics and the applicant’s understandable fears that the empowering of the Afghan Taliban in neighbouring Afghanistan will in turn embolden and empower the Pakistani Taliban over the coming foreseeable future.   Whilst the impact of the shift in power in Afghanistan is of course unknown at this early stage, I share the applicant’s concerns in this regard, as do many international commentators.   According to one BBC report, for example[2], “…when the Taliban were last in power 20 years ago, Pakistan was one of the few countries to formally recognise its government. And when the Taliban seized Kabul last month, Pakistani Prime Minister Imran Khan declared the group were "breaking the chains of slavery".  The article also notes “Pakistan's historic support for the Taliban does not, however, mean it is entirely relaxed about the group's takeover in Kabul. Pakistanis have suffered hugely over the years at the hands of Islamist terror groups launching attacks over the border from Afghanistan.”

    [2] Afghanistan: What rise of Taliban means for Pakistan - BBC News published 3 September 2021.

16. In an article in the Washington Post on 5 September 2021, the report includes a picture of a crowd waving Taliban flags and shouting slogans in the Pakistani city of Chaman on the Pakistan-Afghanistan border on 31 August 2021.   The report also includes the suggestion that: “..beneath the widespread jubilation, Pakistan is beginning to reckon with the destabilizing effects washing across the Afghan border. The Taliban’s dramatic victory not only has galvanized terrorist groups waging a bloody insurgency inside Pakistan, but it has also buoyed hard-line religious parties that seek to reshape Pakistan in a more fundamentalist Islamist image.”  Later, the report also includes the following statement:  “Pakistani officials say their most immediate concern is the resurgence of a coalition of militant groups known as Tehrik-e-Taliban Pakistan, or the Pakistani Taliban, which is allied with the Afghan Taliban and has conducted nearly 1,800 attacks on Pakistani state and civilian targets in the past decade. After hailing the Taliban’s “blessed victory” in Afghanistan, the TTP claimed another attack last week in which gunmen crossed from Afghanistan and killed two soldiers in northern Pakistan’s tribal region.”

17. I consider that in giving consideration to the re-emergence of Taliban rule in Afghanistan, it is a reasonable conclusion to draw that the TTP in Pakistan, in KPK and in SWAT are currently likely to be emboldened, more active and potentially more dangerous than they have been for many years and even taking into account multiple military actions undertaken against them since 2009. 

1. In any event, even prior to the recent shift in Afghanistan, and despite multiple military backed actions over the past decade aimed at disempowering the TTP across the country, the country information (including DFAT’s most recent report) reflects persistent attacks including suicide bombings, incursions and shootings claimed by the TTP against their perceived opponents and enemies, including members and politicians of the ANP.  I am satisfied that if a person who is perceived as or has the profile of an enemy of the TTP, such as a member of the ANP or VDCs, or persons who have cooperated with the Pakistan Armed Forces, the risk of them facing constant threat and a targeted attack or being killed could not be considered remote, or even ‘unlikely’, now or in the reasonably foreseeable future, particularly in Khyber Pakhtunkhwa, where the applicant’s home village is situated.   

   Does the applicant have a real chance of persecution in Pakistan?

2. An applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

3. A number of factors weigh in favour of my accepting that the applicant faces a real chance of persecution in Pakistan if he were to return, now or in the reasonably foreseeable future.  I have noted (and accept) his familial history and the fact that his father has already lost his life to the TTP in 2009, that his brother [Mr C] fled the country after being present in a politically motivated attack, and that his brother [Mr E] no longer farms the family farm out of a fear that he will be found and targeted by the Taliban.  I have also accepted that his brother [Mr F] was present during another extremist attack in 2016 in which ANP members were killed.  I have also considered the region from which he hails (the SWAT valley), where there is a significant recent history of TTP activity and support, and ongoing acrimony about the government actions taken to disempower the TTP in the region during 2009 and 2010.   I have accepted that the applicant has a profile in his home community and is recognised as an opponent of the TTP and a supporter of the ANP and of the VDC. 

4. I accept that the applicant would resume his involvement with those organisations (and thus his profile) if he were to return to [Village 1].  I have also noted and accept the shift in political power away from the ANP in [Village 1], and the applicant’s desire and determination to assist his chosen political party to recover power in the region.  I have carefully considered the country information, both general and specific, and news reports about the irregular but relatively common occurrence of politically motivated acts of violence in Pakistan, in particular in Khyber Pakhtunkhwa.  After weighing these various factors carefully, I am satisfied that the applicant has established that there is a real chance that he will suffer serious harm (be attacked and killed by members of the TTP) now or in the reasonably foreseeable future if he were to return to [Village 1] (or to Khyber Pakhtunkhwa) because of his political opinion and activism, his membership of the ANP and his participation in the [Village 1] VDC.

   Is the applicant willing and able to obtain the protection of the Pakistani authorities from the persecution he fears?

5. According to DFAT: 

   5.1  Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.

   5.2  Despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred.

6. Bearing in mind this information and also the ongoing volatile security situation and active TTP attacks in Khyber Pakhtunkhwa (KP), occasioning ongoing deaths and injury to civilians, political and security targets, I am of the view that the level of protection available to the applicant from the Pakistan authorities in the SWAT Valley and KP is not at the level which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 [20040 HCA 18.   I find that the applicant is unable to receive State protection from the persecution he fears.

   Can the applicant reasonably relocate within Pakistan to avoid the persecution he fears? 

7. Practically speaking, the country information suggests that internal relocation within Pakistan is possible and common as citizens move internally to pursue employment opportunities.  I accept that the applicant could legally and practically choose to reside in a different part of the Country on his return, in a different community or large urban centre, remote from his home region and outside of KP.  Significant communities of Pashtuns are reported to reside in Karachi, Balochistan, Islamabad or Lahore.   For ease of movement and assimilation, language, and potential social support, I consider that the applicant would be likely to seek to reside within such communities.  Given Pakistan’s population and size, I do not accept that it is plausible that the applicant would be identified and targeted (now or in the reasonably foreseeable future) by TTP extremists from [Village 1] if he were to relocate and reside within a large urban Pashtun and general population.  I consider, therefore, that the applicant could avoid the real chance of harm he faces in KP by choosing to relocate to a large urban environment, for example, like Karachi where he has no such profile.   

8. I have taken into account and consider that the applicant’s commitment to his community and his political support of the ANP and his anti-Taliban/extremist opinion are strongly and genuinely held.  I accept that wherever he were to reside within Pakistan, the applicant would become involved in social, political or community groups who are opposed to and undertake activism against extremist organisations such as the TTP and those political parties who the applicant perceives as supporting extremists in Pakistan.  In the context of political violence in Pakistan, I consider that there is at least some potential that the applicant will make new enemies from within extremist organisations wherever he chooses to reside in Pakistan. 

9. However, because I have found that the applicant is unable to reasonably relocate, I have not investigated the theoretical real chance of him being persecuted by a new persecutor in a new relocated area.  My reasons for reaching that conclusion follow; but I have made this assessment assuming that the applicant would not face persecution in his new location for the same reasons and from the same persecutors from whom he faces a real chance of persecution in Khyber Pakhtunkhwa. 

   I have noted and had regard to the applicant’s submissions in his statutory declaration lodged on 5 October 2021 on the issue of relocation:

   54. I do not believe I can relocate to any other areas of Pakistan.  I would have a lot of trouble securing accommodation as a Pashtun from Swat.  People would suspect me of being Taliban and also the people generally look down upon Pashtun people.

   55. I do not speak Urdu very well, and even when I do, I have a strong accent indicating I am a Pashtun. When I was working on ships, we would generally use a mix of Pashto and English, and lots of hand gestures. I managed to get by but I could not work in a job where I had to speak Urdu. My English is also poor.

   56. I have been deaf in my [ear] since birth and have a poor memory. I am on a waiting list for surgery. I understand this might help.

   57. My family members wouldn’t have the financial means to help me get by in Islamabad or other big cities. Rent and the general cost of living is high in the big cities. Islamabad is particularly expensive. My work is limited to working on ships and farming. There isn’t any work that I could do in Islamabad. Although there is ship work out of Karachi, that city is extremely dangerous these days, with crime and terrorist attacks so common. I also worry about gangs in Karachi as you have to bribe people to get anything. I am now deemed to be a ship deserter it would be impossible for me to get work again as a [Occupation 1].

   58. My wife lives in Swat and only speaks Pashto. She has never been outside of Swat before and she only has three of four years of primary school education. She is a very simple person. She wants badly to have children. If we lived together in another city outside of Swat without her close family and tribunal networks, she would not be able to do anything on her own if I were off looking for work. She would not manage to go to the doctor by herself or to take our child to the doctor.

10. I have also had regard to the extensive submissions made by the applicant’s representative on the issue of reasonableness of relocation, limitations on security and mental health availability in Pakistan. 

11. I consider that a number of significant factors weigh heavily against the reasonableness of the applicant relocating.  He has limited Urdu skills and his Pashto language would potentially (and significantly) limit his opportunities throughout Pakistan, including employment and accommodation options.  Further, the country information reflects that the Pashtun community outside of tribal areas experience a level of profiling as terrorists by the Pakistan police and military (due to the predominantly Pashtun membership of terrorist organisations in Pakistan) and also experience prejudice in finding employment and accommodation.  I note also that the applicant has no family outside of his home region and no practical (financial and accommodation) nor tribal support on which he could rely in any other part of Pakistan.  I am also satisfied that the availability of mental health treatment would be problematic in Pakistan generally; and that restrictions on accessing mental health support may tie him to large urban areas like Karachi and Lahore, limiting his relocation options where significant general violence which would then also increase (according to his mental health professional’s advice) his vulnerability to deterioration of his mental health.

12. Additionally, wherever the applicant chooses to reside, his language skills and  lack of a support network would also potentially make it more difficult for him to access the medical assistance and counselling he needs.  Without family and tribal support in large urban environments, the applicant would be vulnerable to homelessness, general and racially motivated violence, and arrest.  Additionally, and as he noted, due to him having deserted ship in Australia, he would find it difficult to obtain work as a [Occupation 1] and his limited work and language skills would provide a further barrier to the applicant finding employment and accommodation throughout Pakistan.   

13. After considering the applicant’s circumstances and these various factors impacting on his capacity to and the reasonableness of relocation within Pakistan, I find that the applicant cannot reasonably relocate within Pakistan. 

14. The applicant is outside his country, Pakistan.  The persecution he fears involves him being killed, or subjected to violent assault and intimidation. The persecution involves serious harm.  I have found that the reasons for the persecution are for one or more of the reasons enumerated in the Convention definition.  I have also found that there is a real chance that the applicant will suffer persecution at the hands of the TTP because of his membership of the ANP, the VDC, and because of his anti-Taliban political opinion, now or in the reasonably foreseeable future if he returns to his home region.  I have also found that the applicant is unable to avail himself of the protection of his country from the persecution he fears.  Finally, I have found that the applicant cannot reasonably relocate within Pakistan to a part of the country where he would not face a real chance of persecution.

15. I am therefore satisfied that the applicant has a well-founded fear of persecution in Pakistan and that he is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Anne Grant
    Member