2206436 (Refugee)
[2024] AATA 3540
•11 July 2024
2206436 (Refugee) [2024] AATA 3540 (11 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Shahid Shakur
CASE NUMBER: 2206436
COUNTRY OF REFERENCE: Pakistan
MEMBER:Samira Kamandi
DATE:11 July 2024
PLACE OF DECISION: Perth
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 11 July 2024 at 10:16am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Pashtun ethnicity – religion – Sunni Muslim religion – imputed political opinion – fears harm from the TTP – having been targeted by the TTP in the past – father’s profile – applicant has a well-founded fear of persecution – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is national of Pakistan, of Pashtun ethnicity, and Sunni Muslim religion. He was born in [year], in the village of [Village 1], in [District 1] district, located in the Khyber Pakhtunkhwa (KPK) province in Pakistan.
The applicant arrived in Australia on [date] August 2014 as a holder of a Student (Subclass TU 573) visa. He made an application for a protection visa on 9 March 2015. On 16 June 2017, a delegate of the Minister for Immigration and Border Protection on refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal). On 16 April 2021, a differently constituted, Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant applied for judicial review of the Tribunal decision. On [date] April 2022, the Federal Circuit and Family Court of Australia quashed the Tribunal’s decision and remitted the matter, by consent orders, to the Tribunal for determination according to the law. This is a further review of the delegate’s decision not to grant the applicant a protection visa.
CLAIMS AND EVIDENCE
Evidence before the delegate
Information before the delegate indicates that the applicant contacted the Humanitarian Group for assistance with his protection visa application on 11 September 2014. The applicant’s protection visa application, lodged on 9 March 2015, indicates that he was assisted by a migration agent.
The applicant was interviewed by the delegate on 24 June 2016. As outlined below, the delegate was also provided with the applicant’s statutory declaration dated 6 March 2015, supporting documents and media reports.
The applicant’s claims before the delegate can be summarised as follows:
The applicant’s father’s profile
·The applicant was born and resided in the village of [Village 1] in the [District 1] district, in the province of KPK. His parents and siblings remain in the [District 1] district.
·The applicant’s father worked as a [Occupation 1] with the Pakistani government in [District 1]. He joined [a committee] after retirement and became [Position 1] of the committee in 2008 for a year.
·The applicant’s father has been actively involved in village community work focusing on peacemaking initiatives within the village for the last 10 years. He is well-known in the village and the wider district.
·The applicant’s father became [Position 2] of the Peace Council in 2009. The Peace Council is, in effect, the local village ‘jirga’ and is involved in resolution of disputes and problems in accordance with Islamic teachings and traditional culture and beliefs. The Peace Council has 16 members, which includes several of the applicant’s uncles.
·There is no active police presence in the village and no police station situated within the village. The closest police station is approximately 5 km away, where the district hospital and the market are located. Most people within the village carry firearms, and with the assistance of the local jirga, take care of protecting themselves.
·In about 2009, the Tehrik-i-Taliban (TTP) became more active and visible in the village. Members of the TTP begun illegally cutting down and smuggling trees from the [District 1] jungle area to sell. In response the applicant’s father became vocal in his disapproval of the smuggler’s activities. He was involved in arranging for a local [checkpoint] to be erected and the security checks of vehicles coming in and out of the [area]. There was a signboard erected at the check posts with the applicant’s father’s name, noting that he was [Position 1] of the Peace Council.
·The applicant’s father was also involved in campaigns on behalf of the Peace Council and the local mosques. In about 2009, the applicant’s father’s name was recorded on the TTP’s ‘hit list’. The hit list also included the names of other executives of the Peace Council. The applicant’s father gave a copy of the hit list to the Pakistani army but was told that they needed to protect themselves.
·In about 2009, the applicant’s father was identified by name and threatened on the local FM radio station which was operated by the TTP. The other 16 members of the Peace Council were also mentioned. They were threatened to stop their work with the Peace Council or they would be killed.
The applicant’s volunteer activities
·From around 2006, the applicant became involved in community and village initiatives by volunteering for various humanitarian organisations.
·The applicant was a volunteer with [Organisation 1] from 2006 to 2008 and was involved in the distribution of [items] and office work which included maintaining official records and data entry.
·The applicant was involved as a volunteer with [Organisation 2] from 2008 until 2012. He volunteered in disaster relief, and health and community building initiatives. This included volunteering during the 2010 flood in the area.
·The TTP generally opposed the works of volunteer organisations because they consider such organisations to be westernised or otherwise attempting to spread Western influence and morals in the community.
Past events involving the applicant’s family members in Pakistan
·On [date] October 2009, the TTP carried out a suicide bombing in the marketplace in Alpuri. The applicant’s maternal uncle who was a member of the Peace Council was killed while attending the market for a meeting between the Peace Council and the army. A cousin lost his leg and another sustained a severe head injury.
·Prior to the bomb blast, the applicant’s father’s cousin, who was also a member of the Peace Council, was attacked and killed by members of the TTP.
·On or about 22 August 2009, another cousin of the applicant’s father, who was the spokesperson for the Peace Council, was killed by members of the TTP.
·The applicant’s father received telephone threats, and the most recent took place in 2014.
The applicant’s travel history and events prior to arriving in Australia in 2014
·The applicant applied for and was granted a student visa in 2012. He travelled to [Country 1] in October 2012.
·The applicant returned to Pakistan in April 2014 where he remained for a period of about four weeks, returning to [Country 1] in May 2014.
·The applicant travelled to Pakistan in July 2014. He received a formal invitation from his cousin, who was the head of the Security Council which was part of the Peace Council, to join the Security Council. The applicant became involved in carrying out patrols and surveillance of the local area and raising awareness about community and health-related issues in the village.
·The applicant attended several meetings with the Security Council, during which he learnt about the polio drops for young children. He assisted government health workers in raising awareness in the village about the importance of getting vaccinated. This work was not only confined to the village but also in the surrounding areas.
·The applicant also attended local mosques during Friday prayers to speak out about the negative impact of TTP in the community. He delivered speeches after the prayers at three mosques. He covered topics such as the TTP’s opposition to education of females, the work of the Peace Council and other peacemaking groups in the community, education and health awareness campaigns, and spoke about the TTP being responsible for carrying out suicide attacks against those who opposed them.
·Shortly after delivering the mosque speeches, the applicant received a call on his mobile number from an unidentified number. The caller referred to the applicant and his father spreading messages against the TTP. The applicant took it as a genuine threat against him and his father and contacted his mobile service provider to try and trace the number but the number could not be identified. The applicant was advised by his father not to answer unidentified numbers.
·On 21 August 2014, the applicant went to visit his family’s farm which was located within walking distance from his family home. He saw about six or seven masked men carrying guns, from a distance. The applicant could not recognise individuals as their faces were covered with turban style masks. He saw them pointing their guns and heard the sound of shots being fired. The applicant sought refuge at the nearby house, he became unconscious from shock, and when he became conscious his brother was there.
·The following day the applicant attended the district police station and made a report. At the time, the applicant was already granted a student visa in Australia and made arrangements to depart the country for Australia on [date] August 2014.
Events after arrival in Australia in August 2014
·The applicant has maintained regular contact with his parents by phone. His father advised them that he is afraid to leave the house because he believes he will be attacked or killed. His father is unable to carry out his duties as [Position 1] of the Peace Council. Before attending any Peace Council meetings, he ensures that the area is safe and not unknown people are in the vicinity. The applicant’s father advised the applicant that he would be in danger if he returned home and that his father has arranged for members of the Security Council to control their house and ensure the safety of their family.
Fear of harm
·The applicant believes that if returned to Pakistan he will be assaulted or killed by the TTP.
·The applicant does not consider it possible to relocate to another area of Pakistan because he is not capable of supporting himself financially without his family’s assistance. The TTP has carried out numerous attacks in the Swat area. Due to his and his father’s activities, the applicant would be targeted by the TTP regardless of where he lives in Pakistan. He is aware of other people who unsuccessfully attempted to move from his village and surrounding areas. People in other areas mistrust newcomers to their communities because they fear the TTP/Taliban, and unless they know people, people are generally shunned or discriminated against.
·The Pakistani police force do not have the capability, resources or willingness to protect the applicant.
In support of the applicant’s claims, the delegate was provided with the following documents:
·A letter from [a committee] dated 5 March 2008, confirming the applicant father’s appointment as [a senior position] of the committee.
·A letter from the office of the district police in [District 1] dated [date] August 2014 confirming that the applicant’s father had been [Position 2] of the Peace Council in the village since its inception.
·A letter from [Organisation 1] dated 10 March 2008 confirming that the applicant worked with the organisation as a volunteer from January 2006 to April 2008.
·A letter from [Organisation 2] dated 27 January 2015 certifying that the applicant worked with the organisation as a volunteer from 10 April 2008 to date.
·Certificates of acknowledgement awarded to the applicant for his volunteer work with [Organisation 2].
·A letter from the government of KPK dated [November] 2014, certifying that the applicant worked as a team member in the polio eradication campaigns in his village on a volunteer basis.
·A first information report (FIR) dated [date] October 2009, relating to the applicant’s uncle’s death due to a suicide bombing at the market.
·An FIR dated [date] August 2009, relating to the applicant’s father’s cousin’s death.
·Copies of death certificates of the applicant’s uncle and his father’s cousin.
·A letter from the applicant’s father dated 24 June 2014 confirming that the applicant’s cousin was the head of the Security Council of the Peace Council.
·A letter from the applicant’s cousin to the applicant dated 14 July 2014 inviting the applicant to assist the organisation.
·An FIR dated [date] August 2014, relating to the attack on the applicant.
·Several media reports relating to incidents and attacks on peace committee members, police officers, polio workers, and mass attacks by the TTP and the Taliban in the period between October 2009 and May 2016.
Delegate’s decisions
The applicant was interviewed by the delegate on 24 June 2016 and his application for a protection visa was refused on 16 June 2017. The applicant provided the Tribunal with a copy of the delegate’s decision.
The delegate accepted that the applicant volunteered with [Organisation 2] from 2006 to 2012 and that he worked for a polio organisation providing information to the public with regards to vaccines. The delegate did not accept that the applicant engaged in activities on behalf of the Peace Council on his return to Pakistan in 2014, that he received any direct threats from the TTP, that he was fired upon by the TTP just six days prior to travelling to Australia, or that his father received a telephone call from the TTP in December 2015 and the caller warned that the applicant was known to hold Western ideas and was targeted. The delegate was not satisfied that the applicant had a profile of interest for reasons of his imputed political opinion or as an opponent of the TTP when he departed Pakistan for Australia in 2014. In considering country information about the security situation in Pakistan at the time, the delegate was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm if returned to Pakistan.
Evidence provided to the previous Tribunal in 2021
The applicant applied for review of the delegate’s decision on 22 June 2017. The applicant attended two hearings before the Tribunal on 11 February 2021 and 1 April 2021. In addition to giving oral evidence to the Tribunal, the applicant also provided the Tribunal with written submissions dated 22 March 2021 and 4 April 2021. The Tribunal was also provided with news articles and information relating to the applicant’s residence and study in [Country 1], and his enrolment information relating to his student visa in Australia. In addition, the Tribunal was also provided with the following documents:
·A document titled ‘order’ regarding the withdrawal and replacement of members of the peace committee dated 11 January 2019.
·The applicant’s father’s [identity] card.
·A letter from [Organisation 3] dated 3 February 2021 requesting for authority for the applicant to travel within the Perth region as a volunteer with [Organisation 3] during their Western Australian stay-at-home orders in 2021.
·A letter from the human resources coordinator at [Organisation 3] dated 6 November 2017 confirming the applicant’s volunteer work with [Organisation 3] from June 2016 to April 2017.
·A certificate of completion issued on 13 December 2017 by [Organisation 3] certifying that the applicant successfully completed [a] program.
Further evidence provided to the current Tribunal
On 2 May 2024, the applicant was invited to a hearing on 19 June 2024. On 3 May 2024, the applicant’s representative responded to the hearing invitation, indicating that the applicant and his representative will be attending the hearing and that further written submissions and documents will be provided prior to the hearing.
On 9 June 2024, the applicant provided the Tribunal with a statutory declaration dated 7 June 2024, certificates and statement of attainment regarding his further study and attainments in Australia, and the following country information reports:
·The 2022 Department of Foreign Affairs and Trade (DFAT) report on Pakistan.[1]
·A news report published on 29 April 2024 about the arrest of TTP members by the KPK Counter Terrorism Department (CTD) involved in the suicide attack in Bisham in March 2024.
·The 2023 US Department of State report on Human Rights Practices in Pakistan.
·The South Asia Terrorism Portal (STAP) report published in 2024 regarding the recent general election in Pakistan.
·The 2023 Amnesty International report on Pakistan.
·The 2020 Freedom House report on Pakistan.
·A report published by the Community Appraisal and Motivation Programme (CAMP) in 2011 about the jirga system in Pakistan.
·A country information advice by the Refugee Review Tribunal on Aman committees in Pakistan dated 25 June 2012.
·A news report published in Dawn on 13 September 2022 regarding the Swat blasts claiming 5 lives, including a peace committee member.
·A media report published in UPI on 20 February 2014 regarding the targeting of peace committees in the Swat valley.
[1] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
On 11 June 2024, the applicant’s representative provided the Tribunal with a further written submission. The submission puts forward arguments against the delegate’s findings and submits that there is a real chance that the applicant will face a real chance of serious harm if returned to Pakistan due to his past activities and having been targeted by the TTP in the past, his father’s profile, and threats made against the applicant and his father. The harm will be directed at him for reasons of his imputed political opinion and he will not be offered effective state protection.
The applicant’s evidence provided in his statutory declarations and information in the submissions and the supporting documents referred to above are considered and further discussed in my assessment of the applicant’s claims for protection.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant’s representative was present. The applicant, who is fluent in English, gave evidence in English. At the hearing, the applicant was informed that if at any time he did not understand my questions, he could ask me to repeat or rephrase and he was to ask for clarification when needed. The applicant was able to respond to my questions and present his evidence in a clear manner during the hearing. I am satisfied that the applicant was able to participate at the hearing and was given a real and meaningful opportunity to engage in the process. Where relevant, the applicant’s evidence given at the hearing is referred to in my consideration of his claims set out below.
At the commencement of the hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa. I informed the applicant that I had the evidence that he provided to the delegate and the previous Tribunal, including his evidence given to the Tribunal during the hearings held in 2021, and that I will be relying on all the evidence before me. I also explained that I was not bound by the findings of the delegate or the previous Tribunal and that I would be assessing the evidence and information before me, including the applicant’s evidence given at this hearing, in determining his review application. I indicated that all aspects of the applicant’s claims were in issue before me and that he should not assume that anything that was accepted by the delegate or the previous Tribunal would also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with the applicant’s claims or evidence with him and that the purpose of this was to allow him to understand the issues and provide his responses and any further information that he wished for me to take into consideration. The applicant expressed his understanding of these matters and indicated that he had no questions in this regard.
At the conclusion of the hearing, the applicant submitted a document he obtained online said to have been issued by the assistant director of policy in Pakistan on 5 June 2024. The document is titled ‘policy decision regarding asylum seekers’ and indicates that on the backdrop of national security concerns and international commitments, the Federal Minister of Interior has directed not to issue passports to individuals who have sought asylum or are living in asylum in foreign countries. The applicant’s representative submitted that the situation in Pakistan is getting worse and that the government’s decision in this regard further indicates that returning asylum seekers will be at risk of harm if returned to Pakistan.
After the hearing, the applicant’s representative provided the Tribunal with media articles reporting on this issue. The media reports echo the information in the abovementioned directive and further indicates that the Pakistani government will not entertain passport renewal of nationals living abroad who have applied for or been granted asylum.
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). 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Pakistan for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
For the following reasons, I have decided that the matter should be remitted for reconsideration.
ANALYSIS, FINDINGS AND REASONS
Country of reference
The applicant has consistently claimed to be a citizen of Pakistan. He has provided documents supporting his identity and nationality. I accept that the applicant is a national of Pakistan, and that Pakistan is the receiving country for the purposes of this review.
Applicant’s claims for protection
In essence, the applicant claims to fear persecution for reasons of his actual and imputed political opinion against the TTP and its ideology. He claims that he will be targeted and harmed by the TTP due to his father’s profile as [Position 1] of the peace committee, his past volunteer activities prior to his departure from Pakistan for [Country 1] in 2012, and his activities during his return to Pakistan in July 2014 in support of the peace committee initiatives which resulted in him having been personally targeted by the TTP in August 2014 prior to his departure from Pakistan for Australia. The applicant also claims that he and his father received threatening calls from the TTP while he was in Pakistan, and that his father also received a call in 2015 from the TTP indicating that the applicant was a target of the TTP. He claims that he is unable to return elsewhere within Pakistan because he will be found and targeted by the TTP and that he would face serious harm due to his Pashtun ethnicity.
Background information
At the hearing, the applicant confirmed that he resided in his village in [District 1] from birth until his departure for [Country 1] in October 2012. He confirmed that he completed school at a local school in his area and that his father paid for his schooling. The applicant also confirmed that after completion of high school in 2003, he commenced and completed a [course] in 2006. He then started his volunteer work with [Organisation 1] in 2006 which he continued until April 2008 after which he commenced working as a volunteer with [Organisation 2] which he was involved with until September 2012. At the hearing, the applicant stated that apart from his volunteer activities with these organisations, he did not engage in any paid employment and he was financially supported by his father. The applicant stated that his volunteer commitments took up most of his time and that he also socialised and engaged with members of the peace committee during this period, although he was not himself a member of the committee.
The applicant has consistently claimed and provided documentary evidence in support of his volunteer work in the period between 2006 and 2008. I accept the applicant’s evidence regarding his residence, education history and voluntary work with the named organisations in the period between 2006 and 2008.
At the hearing, the applicant confirmed that his parents remain living at their family home in [District 1] which is owned by his father. His father worked as a [Occupation 1] with the Pakistani government and retired from that role in 2008. He then became [Position 2] of[a committee] in 2008 due to his experience in [this field] and became [Position 1] of the local peace committee in 2009. At the hearing, the applicant explained that the [committee] was a subgroup within the peace committee and was involved in [details deleted]. The applicant provided documentary evidence regarding his father’s positions within these committees.
The applicant described his family as a wealthy and well-known family within his village, where his entire extended family also resides. He stated that after his father’s retirement from his position [with] the Pakistan government in 2008, in addition to his involvement with the peace committee, he also operated his own businesses which included working [a business], from which he received a commission, and a [second business]. In addition, his family owns land in the area and receives an annual income from the sale of the produce from the land. He explained that the income from their land and his father’s businesses allowed his father to support the applicant financially while he was living at home in his village and also to pay for his studies and living expenses while the applicant studied and resided in [Country 1] from 2012 to 2014.
Regarding his siblings, the applicant stated that, apart from his younger brother who has been in Australia since 2022 on a student visa, his other siblings remain living and working at their village in [District 1].
I accept the applicant’s evidence regarding his father’s employment and involvement with the peace committee since 2008 (at first as [Position 1] of [a committee] and then as [Position 1] of the local peace committee). I also accept that apart from his younger brother, the rest of his family and extended family remain residing at their village in [District 1] and that the applicant has no family members residing in any other part of Pakistan.
Applicant’s experiences prior to his departure for [Country 1] in 2012
As set out above, the applicant claims that while residing in Pakistan, the TTP operated in his local area and he was aware of the TTP targeting, beating and killing people, which included government employees, law enforcement officers, local leaders and artists. He claims that while the Pakistani authorities operated checkpoints, they were not taking steps to stop the TTP from harming people and that he and others did not trust the authorities for this reason.
The applicant’s evidence is that when the TTP sent their groups to villages to preach their ideology, his father, as the head of the local peace committee, held a meeting and sent a message to the TTP leaders and that they, the village people, were Muslims, peaceful people, and wanted to remain neutral in these situations. The applicant claims that this caused tension between the TTP and the peace committee, causing the TTP to make threats against peace committee members and led to the killings of the applicant’s maternal uncle and his father’s cousins who were also peace committee members.
The applicant provided documentary evidence including death certificates regarding his family members’ deaths in 2009 and 2012. He also provided the delegate with media articles reporting on activities of the TTP and their targeting and attacks on peace committee members.
Country information[2] reports that a number of domestic jihadist groups and networks operate in Pakistan. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short‑term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas, including KPK. Its long‑term goal is to overthrow the state and establish sharia (Islamic law) and an Islamic caliphate.
[2] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359; Irfan U Din and Mansur Khan Mahsud, Fata Research Centre (FRC), ‘Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2020', 6 January 2021, 20210113125205; Pulitzer Center on Crisis Reporting, 'Life in the Swat Valley', 5 August 2011, CXCB3E63420998; Ehtisham Khan, Express Tribune, 'Gripped by fear of terrorist attacks, K-P's peace committee members fight on', 20 January 2019, 20210827102934.
Since its inception, the TTP, the main Taliban militant umbrella group in the country, targeted civilians, journalists, schools, pro-government community leaders, security forces and law enforcement agents, killing hundreds and injuring thousands with bombs, suicide attacks, and other forms of violence. The government implemented measures to protect the population and banned the group in August 2008. In 2009–2010, the military engaged in active combat operations to clear militants and to restore security in many areas within KPK. The government also took action to shut down and weaken terrorist ties around the country and prevent recruitment into militant organisations.
It is reported that peace committees were formed by local villagers in the Swat area after military action against the TTP was enacted, with an intention to improve security within the region. Historically, members of the committee have faced sustained attacks from the TTP and other militant groups, including violence by these groups in the KPK since 2007. There are reports of peace committee members having been targeted and killed in years between 2010 to 2016.[3]
[3] Refugee Documentation Centre (Ireland), 'Information on the targeting of Red Crescent society/village peace committees members by extremists', 8 April 2013, 20210827144442; Express Tribune, The (Pakistan), 'TTP claims responsibility for killing Swat peace committee members', 2 November 2012, CX302553; Dawn (Pakistan), 11 peace committee members killed, 1 February 2013, 20210903134919; Express Tribune, The (Pakistan), Targeted attack: Two former peace militia members killed, 23 January 2013, 20210903140954; Killings target anti-Taliban leaders in Swat’, Al Jazeera, 30 November 2014, ‘Peace body member escapes attempt on life’, News International-Pakistan, 4 June 2016, ‘Shangla DSP killed in Swat’, Dawn, 13 April 2016.
Considering the applicant’s generally consistent evidence and the country information about the operation of the TTP within the applicant’s local area, which included targeted attacks on peace committee members and other prominent people seen to have opposed the militant’s ideology, I accept that while residing in his village, the applicant was aware of these issues and that his family members were killed in bomb blasts within the area.
Travel to [Country 1] in 2012
The applicant claims that given his interest in humanitarian work, he was encouraged by his father to go abroad and study so he could become a leader and better serve his community. The applicant applied for a student visa to [Country 1], which was granted, and he departed Pakistan in October 2012. The applicant completed a Diploma [in] 2013, after which he commenced a Diploma [which] was for the period between February 2013 to February 2014. He commenced the Diploma [but] did not complete it. The applicant has provided supporting evidence and I accept that he travelled to [Country 1] on a student visa in October 2012 and that he completed a Diploma [in] 2013 and part completed a [Diploma].
Return to Pakistan in May 2014
The applicant claims that he wanted to do a [degree], and as he knew people in Australia, he decided to apply for a student visa in Australia. He claims that as he was referred to a consultant based in Pakistan, he was advised that he had to return to Pakistan to apply for the visa and to undertake the requisite health and biometric tests in Islamabad. The applicant has provided evidence of his health examination appointment which was scheduled on 15 May 2014 in Islamabad.
The applicant travelled to Pakistan on [date] April 2024, attended the scheduled appointment, and remained with his family in his village until [date] May 2014 when he returned to [Country 1] to continue his studies. He states that he was advised that his application for a student visa for Australia could take about a year, prompting him to return to [Country 1] and to continue his studies until he was able to travel to Australia.
At the hearing, the applicant confirmed that his return to Pakistan was solely for the purposes of applying for his student visa to Australia and to spend time with his family. In response to my observation that his return to Pakistan suggested that he was not fearful for his safety, the applicant confirmed that to be the case. With reference to his evidence that while residing in Pakistan he was aware of the TTP activities and atrocities they committed within his area, I asked if that impacted his decision to return to Pakistan. The applicant explained that in his area they always lived fearing for their safety given the security situation and that people took steps to defend themselves and carried weapons. He stated that he knew there was a risk of being harmed, but because he was not targeted in the past, he did not feel that he would be the subject of any targeted attacks and that he wanted to visit his family. I accept that the applicant returned to Pakistan to apply for a student visa for Australia because he wanted to study a [degree] and I consider it plausible that while the general security situation in the area caused him some concern, he did not have a subjective fear of being personally targeted or harmed by the TTP at the time.
When asked about his activities in the 4 weeks that he remained in his village, the applicant said that he primarily spent time with his family. He also referred to people being scared for their safety and that the peace committee was taking steps to keep the community safe. I accept that while in Pakistan for that period of 4 weeks, he primarily spent time with his family and returned to [Country 1] to continue his studies because he did not anticipate that he would be granted a student visa for Australia for some time.
Return to Pakistan in July 2014
The applicant was granted a student visa for Australia on 28 May 2014. His evidence is that given that he had some time before commencing his course in Australia and he knew that once he started his bachelor’s degree in Australia, he would not be returning to Pakistan to visit his family during his studies, he decided to return to Pakistan on [date] July 2014 to spend some time with his family. The applicant remained in Pakistan until [date] August 2014 when he travelled to Australia.
At the hearing, I raised concerns with the applicant’s decision to return to Pakistan given that he was granted a visa to travel to Australia and his evidence about the general security situation in his home area at the time. The applicant reiterated his evidence that he wanted to visit his family and that he had planned to travel to Australia after spending some time with his family before starting his studies and that he always planned to return to Pakistan at the conclusion of his course. He further explained that at the time while he had some concerns about the security situation in Pakistan, he was not personally targeted by the TTP and did not have a subjective fear that he would be personally targeted. As expressed at the hearing, while I have some concerns about the applicant’s willingness to return to Pakistan when he had the options of remaining in [Country 1] or travelling to Australia, given the applicant’s consistent evidence which was presented in a forthcoming manner at the hearing, I am willing to accept that while the applicant had general concerns about the security situation at the time and had lived in the area where people were generally concerned for their safety but continued to carry on with their lives, he decided to return to Pakistan to spend time with his family prior to his departure for Australia on the basis that he would not be returning to Pakistan while studying and completing his course in Australia.
The applicant’s evidence is that on his return to Pakistan, he found the situation with the TTP in his area chaotic. The TTP were misinforming the community, closing schools for girls, and warning the community against polio vaccination. The applicant’s evidence is that after his arrival in Pakistan the Security Council of the peace committee, led by his cousin, gathered 50 to 60 members of the community to take part in a campaign against the TTP’s spread of misinformation. He claims that he participated in the polio eradication awareness campaign, by knocking on doors and informing people about benefits of the vaccine and where they could present to take the vaccine, and that he was invited and accepted an invitation to speak at the local mosques, on behalf of the peace committee, against the activities of the TTP. He claims that he spoke about the TTP opposing the work of the peace committee, that they were responsible for carrying out suicide attacks murdering those who were against them, and that he spoke against the TTP’s ideology of opposing education for females and the eradication of polio.
The applicant’s explanation for taking part in these activities is linked with his father’s profile in the community, and that not accepting such an invitation would have damaged his father’s authority and reputation. He claims that his opposition to the TTP ideology and his interest and past engagement in humanitarian work also played a role in him engaging in these activities. The applicant further explained that having studied abroad elevated his status within the community as people were more willing to listen to and engage with an individual who has been and studied abroad, and that this played a role in the peace committee’s decision to get him involved. The applicant has consistently claimed that while his elder brothers were residing in the village, they had shown no interest in engaging with the peace committee and wanted to live their lives without having to deal with such issues, but that his interest and desire to engage in these activities and his close relationship with his father prompted him to follow in his footsteps and not live like his brothers.
The applicant claims that while his father had received threatening calls in the past, he also received a call from an unknown number following him delivering speeches at the local mosques. The applicant claims that the caller warned him and his father against their activities against the TTP. He claims that he told his father about the call, who advised him not to answer unidentified numbers and that he tried to get information from his mobile service provider to determine the identity of the caller but was unsuccessful. At the hearing, in response to my questions about how it was that the TTP had his mobile number, the applicant referred to the size of his village, that everyone had each other’s numbers, and that within the village there were also informers who could have given his number to the TTP.
The next incident, claimed to have caused the applicant to depart Pakistan and to apply for a protection visa, occurred on 21 August 2014 while he was visiting his family’s farm within his village. The applicant claims that he was shot at by unidentified men, whom he believes to have been members of the TTP based on their attire and as he had received a call, days prior to the incident, warning him against his opposition to the TTP. The applicant claims that due to fear for his safety, he took refuge at a home nearby, that he was in shock and became unconscious, and that the people called his family. The applicant claims that he reported the matter to the police the next day and provided the delegate with a copy of the FIR about the incident.
The applicant claims that he believes that he was threatened and shot at by TTP members due to his activities at the time and his connection with his father and the peace committee and he has provided media reports about the targeting of peace committee members and polio workers by the TTP in the area.
Given the applicant’s past engagement with humanitarian organisations, his field of study in [Country 1], and his father’s profile within the community, I accept that the applicant was invited to participate in the polio eradication campaign and that he spoke at the local mosques supporting the peace committee’s actions. Given the security situation and the presence of the TTP in the area, and the applicant’s broadly consistent evidence, I am willing to give the applicant the benefit of the doubt and accept that he received a threatening call from unknown people and that he was shot at by unidentified men while at his family farm. However, I have doubts that the applicant was personally targeted by the TTP as claimed. I note that while the applicant claims, and I accept, that his father and other members of his family, including his cousin who was the head of the Security Council of the peace committee, were longstanding active members residing within the community and faced no such incidents of having been confronted or shot at, I find it difficult to accept that the TTP would take action against the applicant in the short period that he was there. I consider that the applicant, like his father, received a call from people in support of the TTP within the area warning him to disengage, I consider that the shooting incident was a random attack and, in my view, it does not establish that he was personally targeted by the TTP as claimed.
Activities in Australia
I accept that the incidents during the applicant’s last visit caused him to fear for his safety and that he held a subjective fear for his safety at the time of his departure from Pakistan in August 2014. While the applicant applied for a protection visa in March 2015, I note that he contacted the Humanitarian Group to seek assistance with applying for a protection visa within weeks after his arrival. This further indicates that the applicant had a subjective fear for his safety in Pakistan at the time and sought to explore applying for protection in Australia.
The applicant’s evidence is that his father continues to remain as [Position 1] of the local peace committee and that he is in regular contact with his family, who has advised him not to return to Pakistan. He claims that in 2015, his father received a call from the TTP advising him that the applicant is on their ‘hit list’. At the hearing, the applicant confirmed this to be the case. In response to my observation that it has been almost a decade since his departure from Pakistan and the lack of any evidence that his father or any members of his family remaining in his village have faced any issues or been attacked indicated that he was no longer of any concern to the TTP or any other person in the area, the applicant explained that his father is now elderly and that he has the support of the Security Council and the Pakistani police in conducting his peace committee duties. He further indicated that once a person is identified as an enemy of the TTP, they do not forget, and that people have been killed 10 or 15 years after becoming a target of the TTP.
Regarding discussions about the applicant’s claim that his name has been placed on the TTP’s ‘hit list’, while the applicant maintained that to be the case and that he will be killed if returned to Pakistan, his representative made submissions that there is no way of establishing that the applicant is on any ‘hit list’ but submitted that the situation in Pakistan is volatile and that when considered objectively there is a real chance that the applicant will be killed if returned to Pakistan.
Given my finding that the applicant was not personally targeted by the TTP as claimed, I do not accept the applicant’s claim that his father was called in 2015 regarding the applicant and was informed that the applicant was on a hit list. As discussed with the applicant at the hearing, the lack of information that the TTP or any other person has made inquiries about the applicant or took any action to harm his family in his absence suggests to me that he is not personally known to, or has a personal adverse profile with, the TTP as claimed.
The applicant claims that given his opposition to the TTP ideology and his strong political opinion against the TTP and their activities in Pakistan, he would take part in the campaign against the TTP and continue his humanitarian activities and support for the peace committee activities and initiatives.
The applicant has provided supporting evidence from the [Organisation 3] that he has engaged in supporting the organisation on a voluntary basis in 2016 and 2017. At the hearing, when asked about how he has expressed his opposition to the TTP and taken part in humanitarian activities while in Australia, the applicant explained that apart from his engagement and support of [Organisation 3], he has not undertaken any further activities, and that being in Australia he is unable to partake in activities that he engaged with while residing in Pakistan. The applicant also referred to his evidence that after his departure from Pakistan, his father ceased the operation of his businesses due to the security situation as he was no longer able to continue with them without risking his safety. This resulted in the applicant’s father ceasing to provide the applicant with financial support and led to the applicant’s inability to continue his studies in Australia as he had to work and support himself financially. He explained that this further impeded his ability to continue to engage in volunteer work in Australia.
Considering the applicant’s family profile and their continued engagement in the peace committee in Pakistan, their opposition to the TTP, and the applicant’s past volunteer activities and engagement with the peace community initiatives and activities, I accept that the applicant has a genuine desire to assist his community and that he is against the TTP ideology. I accept that if returned to his village, it is likely that he would engage in supporting the peace committee and taking part in humanitarian activities, as he has in the past.
Assessment of harm in the reasonably foreseeable future
In assessing whether the applicant faces a real chance of serious harm, if returned to his village in [District 1] in the reasonably foreseeable future, I have considered the applicant’s overall profile in the context of recent country information about the security situation in Pakistan.
According to various sources, the general security situation in Pakistan has been described as complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts and sectarian violence. While military operations in 2015 and 2017 contributed to an overall stabilisation of the security situation in Pakistan, as discussed below, the security situation in Pakistan has steadily deteriorated in recent years. This has been attributed to the return of the Afghan Taliban in 2021, the negative impact of the political unrest within the country, and the regrouping of militants.
It is reported that while terrorist attacks and attacks on civilians steadily declined in the years between 2012 to 2020,[4] mainly due to military operations, the trend was reversed in 2021. The 2023 PIPS report[5] indicates that in 2022, the number of terrorist attacks in Pakistan continued to rise for the second consecutive year. Militant groups such as the TTP and other religiously inspired groups perpetuated a combined total of 179 terrorist attacks, compared to 128 in the previous year. The report notes that there has been an increase of 42% in 2021 and 27% in 2022 in the number of terrorist attacks compared to the number of terrorist attacks in 2009 which was reduced significantly in the years between 2010 and 2020. It is noted, as in the past several years, the highest number of terrorist attacks in 2022 occurred in the KPK region, which included attacks and killings of not only government workers and security personnel but also tribal elders, peace committee members, polio workers and political leaders.
[4] PICSS, ‘Annual Security Assessment Report 2014’, 24 January 2017, 20201001101954; PICSS, ‘2015 Annual Security Assessment Report’, 21 February 2016, CIS38A8012978; PICSS, ‘Annual Security Assessment Report 2016’, January 2017, 20201001101534; PICCS, ‘Pakistan Security Assessment 2017’, 1 February 2018, CIS7B83941229; PICSS, ‘Pakistan's Annual Security Assessment 2018’, 19 April 2019, 20190617153632; PICSS, 2019 Annual Security Assessment Report, 9 January 2020, 20200122140652.
51 CRSS, ‘CRSS Annual Security Report Special Edition 2013-2018’, March 2019, 20190405163832; CRSS, ‘CRSS Annual Security Report 2019’, January 2020, 20200130161732.
[5] PIPS, ‘Pakistan Security Report’, 5 January 2023, 2023022709491.
The most recent 2024 Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) report[6] also notes that terrorist attacks, incidents of terror and violence against civilians have all increased in 2023 compared to 2022. It is reported that the overall security situation in Pakistan has deteriorated due to the return of the Afghan Taliban in 2021, the negative impact of the political unrest in the country, and the activities of groups such as the TTP after the Taliban’s rise to power in Afghanistan and the end of the ceasefire with the Pakistani government in November 2022. The report indicates the TTP ramped up its attack activities, claiming 69 attacks in just two months following the Taliban’s rise to power in Afghanistan in 2021. The report further indicates that most attacks in general and that the majority of violence against civilians occurred in KPK and Balochistan. Regarding the involvement of militant groups in security-related incidents, the report indicates that in the period between 2022 and March 2024, militants were primarily involved in security incidents that occurred in KPK.
[6] ACCORD, ‘Pakistan: COI Compilation’, April 2024, 20240508112304.
Country information[7] reports that the rise in terrorist attacks can be linked to the return of the Afghan Taliban to power in Afghanistan in 2021, as the main group carrying out attacks in Pakistan, the TTP, ‘has a strong base in Afghanistan [and] is closely allied with the Taliban in Afghanistan’, and the rise in violence can be linked to certain factors, including the TTP ending a ceasefire in 2022. In 2022, the TTP and its allies carried out more than 290 attacks, mostly targeting Pakistani security personnel, mainly in the KPK and Balochistan regions. Despite reaching a ceasefire with the Pakistani government in June 2022, TTP attacks continued. The ceasefire was terminated by the TTP in late November 2022, leading to a sharp increase in attacks on security forces in December 2022.
[7] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359; PIPS, ‘Pakistan Security Report 2021’, January 2022, 20220201113110; PIPS, ‘Pakistan Security Report’, 5 January 2023, 2023022709491; PICSS, Pakistan Annual Security Assessment Report 2021, 26 January 2022, 20220209092645; ACCORD, ‘Pakistan: COI Compilation’, April 2024, 20240508112304.
Regarding the activities of the TTP in the KPK province, while it is reported that military operations during 2011–2015 eliminated the stronghold of the TTP in the former FATA,[8] the 2022 DFAT report[9] indicates that the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. While it is noted that under the leadership of Mehsud, the TTP moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives, it also continued to assassinate political and religious leaders and to target religious minorities. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
[8] EASO, ‘Pakistan Security Situation’, October 2020, 20201102100212.
[9] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
Regarding the TTP activities more generally and across Pakistan, the 2024 ACCORD report[10] indicates that after a TTP suicide bombing in Islamabad in late December 2022 that killed a policeman and wounded several civilians, the Jamestown Foundation concludes in a January 2023 article that this attack shows that the TTP is capable of carrying out attacks practically anywhere in the country. In a March 2023 article,[11] the International Crisis Group claims that the TTP has been on a ‘killing spree’ since January 2023.
[10] ACCORD, ‘Pakistan: COI Compilation’, April 2024, 20240508112304.
[11] International Crisis Group, ‘The Pakistan Taliban Test Ties between Islamabad and Kabul’, 29 March 2023.
Peace committee members and tribal elders have historically been the target of militant groups in Pakistan. More recent reports, including media reports and the 2023 PIPS report cited above, also indicate that peace committee members continue to be targeted by the TTP in the KPK province. In addition, the most recent 2022 DFAT report[12] indicates that multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). DFAT assessed members of peace committees and their families are at moderate risk of violence by militant groups.
[12] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
Based on the above cited country information, I accept that the security situation in Pakistan, particularly in the KPK and Balochistan provinces, had deteriorated and is considered unstable. Given that I do not accept that the applicant was personally targeted in 2014 as claimed, I do have some reservations about the level of risk, particularly in light of the fact that his family has remained in the area and has not faced any incidents of harm, that he faces if returned to Pakistan. Nonetheless, in light of the deteriorating security situation in Pakistan, particularly in the KPK province, and the applicant’s overall profile and my finding that he has a desire and will be compelled to support his father and engage with his local peace committee initiatives if returned to Pakistan, I cannot dismiss the real chance of him facing serious harm from the TTP, and militant groups operating in the area, as being remote. Accordingly, I am satisfied that if returned to his local village or any other area within the KPK province, the applicant faces a real chance of serious harm for the essential and significant reason of his actual or imputed political opinion against the TTP. I am satisfied that the applicant faces a real chance of persecution on this basis.
In accordance with s 5J(1) of the Act, to satisfy the refugee criteria, the real chance of persecution must relate to all areas of a receiving country. As noted above, while the security situation in Pakistan has been reported to have deteriorated in recent years, the deterioration has been significant in the KPK and Balochistan provinces of the country. Accordingly, I have considered whether the applicant can return to other areas within Pakistan where he does not face a real chance of persecution.
The applicant has consistently claimed, and I accept, that he is of Pashtun ethnicity. I also accept that while in Pakistan, the applicant resided among his tribe and ethnic group in his village in [District 1], in the KPK province, where his family, including extended family, remains. I accept that the applicant has not resided in, nor does he have any family or connections to any other part of Pakistan.
DFAT reports[13] that while internal migration is widespread and common, it depends on having both financial means and family, tribal and/or ethnic networks to establish oneself in a new location. It is reported that Pashtuns traditionally live among their own tribes and sub‑tribes in the KPK province of Pakistan. They are stereotypically fair skinned with light‑coloured hair and eyes that distinguish them from other Pakistanis.
[13] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
While it is reported that Pashtuns are represented at all levels of society in Pakistan and are represented in Pakistan’s security forces, due to the largely Pashtun composition of the TTP, Pashtuns face official discrimination and there is racial profiling of Pashtuns in terrorism‑related arrests. DFAT also assesses that groups facing official discrimination will face discrimination in all parts of the country. DFAT identifies Pashtuns as a group which faces official discrimination and ethnic profiling across the country. It notes that 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’. It is also reported that Pashtuns report frequent blocking of their CNICs when relocating which impedes access to property and assets and that the risk of harm by authorities increases if they come to the attention of the authorities for any reason. In addition, DFAT reports that in areas where Pashtuns are a minority, low‑level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes.
I have also considered more recent media reports[14] about the situation for Pashtuns in Pakistan. These reports indicate that racial profiling of Pashtuns within the society and Pakistani authorities remains an ongoing issue. The reports echo information in the 2022 DFAT report that Pashtuns face enforced disappearances by the Pakistani army. It is reported that members of the Pashtun Tahafuz Movement (PTM) engaged in activism for the Pashtun ethnic group and calling for accountability for alleged grave human rights violations of Pashtuns by the Pakistani military have been detained while engaging in peaceful protests. Stereotyping Pashtuns as terrorists by comments made by the former Prime Minister Imran Khan in October 2021 and Pakistan’s representative at the United Nations in February 2023 have created a sense of otherness, alienation and discrimination in the social and political landscape of Pakistan.
[14] EIN Presswire, ‘Pashtun Lives Matter: a call for accountability and justice at the 52nd Human Rights Council session’, 19 March 2023; Kakar, The London School of Economics and Political Science, ‘Reimagining the Pashtun’s Cultural Identity in Pakistan’, 3 July 2023; Afzal, M., ‘Why is Pakistan’s military repressing a huge, nonviolent Pashtun protest movement?’, 7 February 2020.
At the hearing, there were discussions around the possibility of the applicant returning to other areas such as Islamabad which is reported to have experienced less terrorist attacks and militant activity compared to other regions such as KPK. The applicant submitted that apart from the lack of any family support and being away from his tribe and extended family, Islamabad is considered safer than other areas because of its high military presence and security checkpoints. He explained that the presence of security forces would bring him to the attention of the authorities, and as a Pashtun, he would face harassment and be considered a terrorist by the security forces. He further referred to the Pakistani government’s recent directive to deny Pakistani nationals who have applied for asylum access to renewing their passports which suggests that returned asylum seekers are viewed negatively and this would also bring him to the attention of the authorities. While the applicant stated that he had managed to renew his Pakistani passport prior to this directive, he argued that the step taken by the authorities seems to indicate that the situation in Pakistan is deteriorating and that he would be at a real risk of coming to the attention of the authorities and face persecution as a Pashtun who has returned from abroad after an extensive period. While I am not of the view that the applicant having sought asylum is known to the authorities in Pakistan, I accept that the applicant has been absent from the country for almost a decade and will consider this in my assessment of his overall profile on return to Pakistan.
In considering the applicant’s overall profile and particular circumstances in the context of the country information about the overall security situation in Pakistan, the recent political unrest in the country, his Pashtun ethnicity and lack of any familial or tribe connections outside of his local village, together with his extensive absence from the country, I have concluded that the real chance of persecution relates to all areas in Pakistan. The country information above indicates that militant activity across Pakistan has intensified in recent years after a sustained and significant downturn in their presence and activities until about 2020. Country information also supports a conclusion that Pashtuns, a minority ethnic group in Pakistan, have historically been subjected to official and social discrimination, which continues to be the case. Pashtuns are subjected to racial profiling, including being stereotyped as terrorists, and face issues with the authorities such as the blocking of their access to documents, including national identity cards, which in turn impedes their ability to access employment and accommodation. The applicant will not have the support of his family if he resides elsewhere outside of his local area, and given his absence from the country, I consider that he will not be able to bypass situations that would bring him to the attention of the authorities which would increase his risk of being subjected to incidents of official discrimination or incidents of harm. Given these matters, I find that the applicant faces a real chance of serious harm for the essential and significant reasons of his imputed political opinion and Pashtun ethnicity in all areas in Pakistan.
The most recent DFAT report[15] assesses that state protection in Pakistan is limited due to under‑resourcing, corruption, socio-economic factors at the individual level, and lack of political will. It is reported that despite measures introduced to curb violence across the country under the NAP – including 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 to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
[15] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
Given DFAT’s assessment, country information about the presence of militants across the country, and the applicant’s circumstances in that he fears harm at the hands of militant groups, societal discrimination and official discrimination by the Pakistani authorities, I find that effective protection measures, as defined in s 5LA of the Act, would not be available to the applicant. I also find that the applicant will not be able to modify his behaviour to avoid coming to the attention of his persecutors or being subjected to serious harm.
Considering my reasons set out above, I am satisfied that the applicant has a well‑founded fear of persecution within the meaning of s 5J of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country, and s 36(3) of the Act is therefore not applicable.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Samira Kamandi
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Remedies
-
Jurisdiction
-
Standing
-
Appeal
0
0
0