2303210 (Refugee)

[2024] AATA 3288

2303210 (Refugee) [2024] AATA 3288 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Terence Jones

CASE NUMBER:  2303210

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:25 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 March 2024 at 11:26am

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – imputed political opinion – father was a member of the ANP – a member of a peace committee – membership of the ANP Australia – being Pashtun – Western values will not lead to the applicant being harmed by the Taliban – epilepsy can be managed through the regular taking of his medication which is available in Pakistan – anti-government or imputed anti-government opinion – security situation in Shangla District has improved – applicant does not face a real chance of serious harm into the reasonably foreseeable future – decision under review affirmed

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

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 (Cth) (the Act).

2. The applicant is a citizen of Pakistan. He applied for the visa on 10 April 2014 and the delegate refused to grant the visa on 9 April 2015.

3. The applicant appealed the decision which was considered by a differently constituted Tribunal and affirmed on the 8 June 2017.

4. The matter was considered in the Federal Circuit Court of Australia and remitted in summary because:

   The Tribunal failed to consider a clear claim and this failure constituted jurisdictional error. The Tribunal appears to have accepted that the applicant held particular political and ideological views and considered them in the context of threat from the Taliban, but not more widely or additionally based on the information and submissions concerning increased threats because of Islamic State’s activity in the region from where he came and from the views he holds. The error is material because had the Tribunal had proper consideration of the evidence about the claims, it may have resulted in a reasonable decision maker deciding differently.

5. Following the remittal to the Tribunal for reconsideration the applicant appeared before this Tribunal on 31 October, 14 November 2023 and 6 March 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from his brother [who] had a separate protection application concurrently heard in a joint hearing by the same member. The applicant’s brother appeared in all three hearings. In addition, the applicant’s wife provided evidence. She also has a separate protection application which was not constituted to this member.

7. It was explained to both the applicant and his brother that any evidence provided in one case would be included as evidence in the other applicant’s matter. In all instances both applicants were given the opportunity to respond to questions posed to them but in some instance only one or the other of the applicants answered with the other choosing not to add anything further. In instances where there was disagreement or a nuanced additional contribution by one brother, I have included in this written decision the relevant oral evidence. 

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   RELEVANT LAW

10. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.

    Refugee criterion

11. 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).

12. 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.

13. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

14. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

15. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

16. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

17. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

18. Fourth, 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 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.

19. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

20. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

21. 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’).

22. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

23. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

24. 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.

    Mental Health

25. The applicant was assessed by clinical psychologist Dr [A] upon the referral of the applicant’s General Practitioner. Dr [A] authored a report on 12 October 2023 following six consultations.

26. The applicant had previously attended counselling under Medicare with another psychologist in March 2020 and 2021 according to Dr [A]’s report. The findings of Dr [A] are as follows:

    [The applicant] was clinically depressed when first seen, partly due to grief that his father, whom he had not been able to see for the past ten years, had just died [2023] in Pakistan. He was also depressed by the fact that he has now been in Australia for ten years and still does not have a permanent protection visa. [The applicant] has residual PTSD from the many traumatic events he has witnessed from the age of [age] years and of which he has been informed by family members to the present day. These are listed below.

27. At the hearing we discussed this report. The applicant said that he was diagnosed with PTSD and severe major depressive disorder which he said arose from his experiences of his family members passing.

28. In addition to his mental health, he has been diagnosed with epilepsy. The applicant said that he takes medication for his epilepsy. He said that the condition and the medication affect his memory and anxiety levels. I asked if there was something I could do to help him through the hearing. He did not offer specifics. I noted that he can flag to me when he needed a break or is having difficulties in understanding the proceedings.

29. Throughout the two hearings I was cognisant of the applicant’s health concerns and endeavoured to provide breaks when it appeared necessary and when requested. He was at both hearings supported by his brother and in the second hearing by his wife.

30. There was a period of two weeks between the first hearing and the second and a few months to the third giving the applicant ample time to reflect on the issues raised and provide new information at the second and third hearings. In addition, opportunity was provided for post hearing submissions following the second and third hearing.

31. In reflecting on the hearings, I am satisfied that the applicant was not impeded by his condition in giving evidence or presenting arguments.

32. The applicant confirmed that he had not taken any other medication in recent times.

33. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence and Findings of Fact

    Background

34. The applicant was born in [Village 1], Shangla District, Khyber Pakhtunkhwa (KPK) where he remained during his childhood through to the completion of [grade] schooling. In 2008 his father sent him to Abbottabad for reasons he described as being because of the Pakistan Taliban who are formally known as Tehreek-e-Taliban Pakistan (TTP). He said that before, he remembered people with guns but no violence, but then in 2007 or 2008, when the ‘Taliban’ came to Swat, ‘it became messed up’. (The applicant referred to those he feared as ‘Taliban’ and as such I will adopt the same terminology in this decision distinguishing the Pakistan ‘Taliban’ from Afghanistan’s Taliban by referring to the latter as the Afghan Taliban.

35. In Abbottabad he studied [and] upon completion he returned home where he began a [degree] but because of some threats he faced during this period he withdrew from his courses and moved to Mingora where he studied a course [at] a private institute.

36. He remained in Mingora for a year, returned to his hometown for a few months and then began a [course] in January 2012, again in Mingora. The [course] lasted six months.

37. While in Mingora he said that he would go home on Sundays. In the earlier hearing with the differently constituted Tribunal, he provided more specific details, namely that it was only during the first course of studies that he returned on a weekly basis and that during this period he attended peace committee meetings in his hometown but during his six-month [course] he remained in Mingora without returning.  

38. After his [course] he claims that he went to Islamabad to prepare documentation to come to Australia. In his protection visa application form it states that he remained in an Islamabad hostel from October 2012 through to January 2013.

39. The applicant arrived at Australia on [date] January 2013 on a student visa.

40. The applicant is married. He met his wife in his village and claims that her family wanted her to get married to someone else but in 2018 the applicant’s father arranged for his brother and her to come to Australia without the knowledge of her family.

41. The applicant has [siblings]. At the time of his protection visa application, they lived at their family home in Pakistan. Subsequently, as noted, the applicant’s brother came to Australia and has also sought protection.

42. The applicant claims that his father has been receiving threats through to when he died of a heart attack in 2023 in their hometown of [Village 1]. The applicant claims that his father was receiving threats because of him and as a result, his father moved to Lahore staying at a friend’s house since February 2023.

43. A statement from a Pakistan lawyer, [Mr B], was received in which it is claimed that during the lawyer’s interview with the father, the father said that the Taliban found him in Lahore and according to the report ‘start threatening him and asking about [the applicant]’s address, and upon refusal, they severely tortured him but due to gathering of people of the vicinity, they left the place while extending threats of dire consequences.’

44. The applicant claims that those threatening his father believed that the applicant had returned to Pakistan, and they wanted to find him and harm him. He said that his father told him that he didn’t know why some people thought the applicant was in Pakistan.

45. The applicant claims that his father went to the police, but they did nothing, and then he went to the court to compel the police to act and in turn he received a protection order, but the applicant claims that the police still did nothing.

46. The applicant said that although his father had been threatened, most recently because of the applicant, he had also received threats arising from his own actions. The applicant said that he didn’t know why those threatening his father thought that the applicant had returned to Pakistan.

47. With regards to the father’s involvement with the ANP, the applicant wrote in his submissions that his father was a member of the ANP but didn’t hold any office. At the hearing he said that he would campaign for them, encourage people to work for them and financially support them but that he didn’t hold any office.

48. I noted an apparent contradiction about this emerging from the submission made by [Mr B], who had claimed to have interviewed the applicant’s father for the purpose of a submission to this Tribunal. In his submission, [Mr B] wrote that the applicant’s father was ‘leading the ANP campaign in his district’. I put to the applicant that this was a very senior responsibility and asked how he could be leading a campaign but not hold any office. The applicant said that as his father didn’t want to contest elections, he wasn’t an office holder. But that he was a leading member and not a leader.

49. The applicant’s father was also claimed to be a former member of the local peace committee. The applicant explained that originally his father was a member of the jirga which dealt with marriages, property, and local crime. The members of the jirga would try to negotiate settlements between parties. The jirga then went on to become the peace committee in about 2007 or 2008 according to the applicant. He said that as a result sometimes his father would go on patrol. The applicant said he would also go on patrols, and that his brother was not involved through the period that he was there but started after the applicant moved to Abbottabad.

50. Specifically, the applicant claimed that he started participating in the peace committee when he was in [a grade] in early 2008 and continuing through to July 2008. He claimed that he would patrol every night during this period. He said that when he went to college, they changed the rules requiring everyone who had their own atomic family to nominate one family member to patrol even if living under the same roof. He confirmed that he didn’t return to patrols after he left in 2008 and that then, either his brother or father, would undertake the responsibility of patrolling as was expected of each family. As noted earlier the applicant claimed that he continued to attend peace committee meetings in 2011 during his weekend trips from Mingora.

    The applicant’s engagement with the Taliban in 2008

1. The applicant claimed that he was once involved in an exchange of gun fire with Taliban operatives while on a peace committee patrol with his uncle and others. In a statement he claimed that most patrols comprised 10-15 people. At the hearing he described the encounter as beginning when one of his co-patrollers heard the cutting down of trees in the neighbouring forest. At the time there were 5-6 people in his patrol group who had AK-47 rifles along with others without them. He said that warning shots were fired by his patrol group and that the people in the forest fired back. After being fired at, his patrol group ran to the mosque.

2. The applicant believes that the people in the forest were Taliban. He reasoned this on the basis that it was not safe to go outside after dark and it was prohibited unless for an emergency, so he believes that only the Taliban would be interested in cutting down trees under such circumstances.

3. He said that the Taliban were cutting down trees because they could sell the timber. I put to him that country information indicates that there are criminal elements involved in timber thievery.[1] I asked why it couldn’t have been criminals who were cutting down the trees. He said that criminals wouldn’t do it around the village and that instead they do it far away in the forest.

   [1] >

   The applicant acknowledged that it was dark and that he didn’t see their faces, nor could they see his face.

4. The applicant claimed that sometime later all members of the peace committee, which he had described in a statement and at the previous member’s hearing as being about 100 people, received a threatening letter.

5. He said that the letters were left in a box at the local mosque where other correspondence such as electricity bills and notices are deposited. He said that the postal system works by people being notified by the Imam if there is a letter for them. In this instance, he said that every household received a threat letter.

6. I asked if all of the threat letters were the same noting that the threat letter he provided specifically mentions him by name. He said that all he knew was that other patrol members also received letters. At the hearing he said that he believes that they referenced each of the recipients as his was individualised but he could not be sure.

7. I put to him that I would want to know if my letter was unique or different and that I was surprised about his apparent indifference. He said that it wasn’t a concern to him to ask if others’ letters had their names or not.

8. The applicant claimed that his uncle was killed in 2008. He believes it was because of the warning shot incident in the forest as his death occurred about a month after the incident.

9. I put to him that as only the uncle was killed and no one else among the 10-15 others present at the time or the hundred who received a threat letter, it would suggest that his death was not directly related. I added that if they knew who was on the patrol, then why would they send threatening letters to all of the approximately 100 people who were members of the peace committee. The applicant responded that in his opinion the Taliban are opportunistic and harm anyone they can. He mentioned the killing of a son of a peace committee member, details of which were provided in the country information submitted to the Tribunal.

10. The applicant had previously mentioned at the differently constituted Tribunal hearing that some of the Taliban’s houses were burned down by the army after being identified by members of the peace committee as being homes of the Taliban, but at this hearing he confirmed that he was not involved in any of those instances.

11. The applicant confirmed that his home village of [Village 1] was not in Swat District despite repeatedly referencing the circumstances in Swat.

12. In considering the applicant’s claims, I accept that he was a part of the patrol that came across some people in the forest who were cutting down trees as described above. I also accept that he received the threat letter that he claimed, which is further discussed below.

13. I find it speculative to conclude that the people in the forest were Taliban as country information indicates that criminal groups undertake tree cutting. In considering the applicant’s reasoning for believing the people in the forest to be Taliban it is not reasonable to base a definitive judgement on the sweeping assumption that criminals only operate away from the village, nor is it convincing to link the uncle’s death a month later or the receipt of the threat letters to that single incident considering the wider circumstances described above. I find that the people in the forest were criminals cutting trees and that any subsequent incident that occurred had no relation to that event.

    Threat letter while at college in 2010

14. The applicant confirmed that he did not receive any threats while studying in Abbottabad.

15. But upon return and during his continuing studies while in Shangla District he claims that he received a threat letter via the President of the Pashtun Student Federation (PSF), a student wing of the ANP, in August 2010. He said that it was in the form of a single letter to the President listing others on the governance committee, including the applicant, stating that what they were doing was not aligned with Taliban ideology.

16. I asked if anyone was harmed. He said that some on the list left college whereas others continued. He recalled that the president was attacked in early 2011 while still in the same college.

17. Following these threats, the applicant stopped attending the college. But the applicant confirmed that the college was [close to] his home and that he went home every night even while he was still at college. I asked how he could be uncomfortable going to his college but was comfortable to remain at home. He said that if there was a threat, he couldn’t just stop his life and live in isolation.

18. The applicant confirmed that after he moved to Mingora [to] start new studies he did not encounter any problems. He said that this was because he wasn’t involved in any activities as it was a small institute with no student federations. He said that during this period he would go home every Sunday and while home he never received any threats.

19. In considering these claims, I accept that the applicant received, by way of the President of the PSF, a threat letter that included his name. I accept that the President who remained in the college was in the following year harmed but as the applicant wasn’t harmed even though he continued to live in the same location as he had when he was threatened, I find that the threat letter was only for the purposes of dissuading him from continuing his efforts in that role, at that institution, at that time. I find that as the applicant left that role and faced no further threat or harm then, that there is no lingering animosity that would transfer into risk from his then activities to the time when he would return to Pakistan.

    Second peace committee threat letter in 2011

20. The applicant described a third threat letter that he received in late 2011. I put to the applicant that this appeared strange as he was in Mingora at the time, had not participated in any peace committee patrols and was only returning on Sundays. He said that he couldn’t say anything on behalf of the Taliban nor how he could be a threat to them.

21. The applicant said that there were two imams, [both] supporters of the Taliban. Through their roles they influenced the people, but they were eventually identified by the peace committee and killed by the army. The applicant believes that he received the threat letter for the reason that he was known to be on the peace committee, and it was the peace committee who was responsible for their deaths.

22. I accept that the applicant received the threat letter that he claimed to have received. I also find that it was because he had been a member of the peace committee. It is relevant to note that there is no claim that any harm befell anyone subsequent to the threat letters being received.

    Brother’s kidnapping in 2013

23. The applicant’s brother was claimed to have been kidnapped in 2013. I accept that he was kidnapped and as such provide a brief outline of the details but focus on how his kidnapping in 2013 would impact the applicant in 2024.

24. According to the First Instance Report (FIR) dated [May] 2013 the brother was returning home from his university and was kidnapped by unknown militants who were demanding 7,000,000 rupees and to call back from abroad the applicant. In the applicant’s statement he wrote that his brother was released [in] May 2023 after their father paid a ransom. In the Pakistan lawyer’s statement, he wrote:

    [The brother] was held captive for about 20 days, and was mentally and physically tortured by the militants during his kidnapping. The Taliban initially demanded that his brother return to Pakistan, however they changed their demand asking for a huge ransom. [The applicant’s brother] was released after a huge ransom was paid and intervention of the local elders and the Police.

    [The brother] was traumatized from the ordeal and was in hiding for two years. Whilst he was in hiding his residence was fired at several times by unknown people. After his marriage in 2014, he was encouraged by his family to seek employment. He was able to obtain a government job with the Department of Forest, as a Forest Guard in 2015.

25. The applicant claims that the original demand made by the kidnappers was that he returns to Pakistan, but his father refused this demand and then the kidnappers instead demanded a financial payment. I asked why someone in the Taliban would care so much about the applicant that they would kidnap his brother. He said that he is important to them due to his opposition to them through the peace committee and supporting the ANP. I noted that by that time his brother was on the peace committee, and yet they didn’t incapacitate him, but instead, apparently, wanted the applicant who was only actively patrolling on the peace committee for a few months some years earlier. He said that they could have harmed his brother but chose not to. I noted that it was common then for the Taliban to kidnap people for ransom so as to finance their operations.[2] The applicant accepted this, but nevertheless believed that they specifically wanted him. He emphasized that he would continue to do what he had done in the past and as such they would have seen him as someone who opposed them.

    [2] Kidnapping for Ransom: The Growing Terrorist Financing Challenge, >

    Following the kidnapping the brother was also fired at while working as a Forest Guard in July 2017. According to the report provided to the Tribunal by the Pakistan lawyer,

    In about July, 2017, while on his forest guarding duty, [the applicant’s brother] was attacked and fired at by unknown people. He believes that the attackers would have been from the Taliban. He was fortunate to escape the shooting unharmed. His family once again sought the help of the local Police Force. After this incident He resigned from his job, he could no longer stay in Swat or even in Pakistan.

26. It is claimed that militants called the father about the whereabouts of the brother in July 2017 after the brother had fled KPK following the forest incident and was at that time living in Islamabad.

27. In considering the circumstances of the brother’s kidnapping, I accept that he was kidnapped, but I do not accept that the kidnappers demanded the return of the applicant. I do not accept this as the applicant’s profile at that time was very low bordering on insignificant. He had been on the peace committee for several months and he had been on a college PSF executive committee for two months. While I have accepted the relative prominence of their family, that they did not seek to kill the brother, but sought to have the applicant return is not plausible.

28. Regarding the forest incident, I accept that the incident occurred, but I do not accept that it was targeted for the purposes of his identity as opposed to his presence when the shooters were involved in illegal activity. As noted earlier, country information discussed at the hearing describes how criminals are involved in the illegal harvesting of trees from forests.[3] I also note that at the hearing the brother said that he returned home every night from his forest duties. Considering that the event occurred in the forest and not on his way home as his earlier kidnapping occurred and noting that that there are criminal groups involved in illegal tree cutting, I find that the shooters did not know who the forestry guard was and that as such there are no lingering repercussions to the applicant via the brother’s experiences.

    [3] >

    With regards to the calls for the brother to return, I do not accept that this occurred in part as I do not accept that the shooters in the forest knew who the forest guard was and in part because the applicant and the brother by that time had been inactive for many years. 

    A cousin’s death in 2013

29. The applicant’s cousin, [who] was also on a peace committee and otherwise a [Occupation 2] was killed in 2013. He was killed while on his lands. The applicant noted that his cousin had received the same threat letter as he had in 2008. He believes the cousin received it because of his involvement with the peace committee.

30. I accept that the applicant’s cousin was killed in 2013. In considering this further I note the high level of insecurity in 2013 as discussed further below and find that the cousin was killed for reasons of being a member of a peace committee. I do not accept that he was targeted for reasons of being a member of the wider family.

    Shots fired at the applicant’s family home in 2013

31. The applicant claimed that in December 2013 shots were fired at his father’s house and stones were thrown on the roof. The applicant described the location of the house as being next to a stream with farming land opposite and that their house is exposed to this area. He said that following the firing of shots police were stationed around the house for a few days but then were redeployed elsewhere.

32. I put to him that if stones were being thrown then it would have been from a close distance and that it was vexing that if they were Taliban once they were that close, they didn’t do anything more. I put to him that it could have been children. He said that children didn’t do such things late at night. He said that in his culture children have to ask permission to leave their homes. He said that the Taliban were known to harass and intimidate people. He said that his family had been targeted before so it must have been them this time. He said that they didn’t have enmity against anyone else.

33. Regarding the shots, he said that he wasn’t present at that time but that his father was sure that it was the Taliban. He said that the police thought that it was not usual. 

34. I accept that some stones were thrown on the roof of the family’s home and that some shots were fired at the house. I find that it would be speculative to assign responsibility to the Taliban but accept that there was some intention by someone to harass the residents of the home.

    The applicant’s sur place activities

35. I asked the applicant why it was that despite coming to Australia in 2013 having purportedly been a supporter of the ANP long before that, he only joined the Australian chapter of the ANP in November 2021. He said that it had only been founded in 2021. He acknowledged that he was involved in only one protest against what the army was doing in Pakistan before that, sometime in 2016 and that it had been arranged ‘under the flag of the ANP’.

36. He said that he had otherwise been [details deleted].

37. At the first hearing he said that he feared harm as the then Prime Minister had publicly threatened people who were criticising the army from abroad and that he believed that the prime minister said they could find such people.

38. At the second hearing when the applicant was specifically asked whether any of his posts would cause him problems, he did not indicate that it would, but rather presented it as evidence that he is continuing to support the ANP.

39. The applicant said that he has a personal [social media] page but that this page did not present him with any risks.

40. In addition to his social media activity the applicant is [a position] of the ANP [Chapter] and the applicant’s brother is [a position]of the ANP [Chapter].

41. I accept the above information, including of his social media activities, his participation in one protest and of his and his brother’s role on the ANP Australia ([chapter]).

    Documents available to the Tribunal

42. The applicant provided documents that purport to support his claims. I engaged with each document with the applicant at the hearing:

43. Threat letter from 2008. In this threat letter a Taliban commander decrees that all members of the [peace] committee should be killed. It then goes on to say that the applicant is ‘an important member of peace committee’. I put to the applicant that it appeared strange that a Taliban official making a threat letter would use the Gregorian calendar rather than the Islamic calendar when dating the letter. The applicant said that Pashtun use western numbers and that as the Taliban are using Western weapons and western military uniforms there is no reason to doubt that they would use the Western calendar. I put to him that the Taliban abide by the Islamic calendar[4] and that its contrary to their beliefs to be adopting western cultural traits. In response he said that it is not compulsory for them to follow everything Islamic. He added that he has been using the Western calendar in school and in his village.

    [4] >

    I also noted that the wording of the threat letter was strange as it identifies the applicant as an ‘important member’ when he was in [a grade] at the time and still a child. The applicant said that a threat to the Taliban could come from a 16-year-old or a 30- or 40-year-old. As long as you can carry a gun, you are a threat. He said that in their culture even as a 16-year-old you can work, provide for the household, and carry a weapon. I accepted this but noted that he hadn’t worked in Pakistan and had been a member of the peace committee for only a few months. He said that they saw him as doing something against them.

44. Threat letter from 2011. The same issue of the date appears again. I also note that the letter refers to him as being an important member despite not having patrolled with the peace committee for three years by this point in time.

45. First Instance Report (FIR): The applicant provided several FIRs including two relating to his brother’s kidnapping, the shots fired at the family home and another about stones being thrown on their house. I put to the applicant that anyone can lodge an FIR. He said that only a victim lodges and even then, the police may choose not to accept an FIR unless there is a basis for the claim. I put to him that country information suggests police are obliged to record an FIR by anyone who wants to lodge one.[5] I said that the police can then choose not to investigate. In response he suggested that if the police are under pressure, they may choose to accept an FIR even if there was no credit to the claims.

    [5]  I put to the applicant that there is country information that describes the availability of fake documents in Pakistan and that they can be easily accessible including for example Taliban threat letters or FIRs.[6] The applicant said that this could be the case. He said that he didn’t know. He said that it isn’t easy to obtain fake documents.

    [6] DFAT, ‘DFAT Country Information Report—Pakistan—January 2022’ at [5.52]

    101.   In post-hearing submissions the applicant provided several examples of accepted official correspondence from the TTP that used Western calendar dating notation.

    102.   In considering the threat letters I accept that they are genuine despite the author, a leader of a movement wanting to introduce Sharia law adopting the Western calendar which begins at the birth of Christ, to date the document rather than when the Islamic Hijra occurred. But I find that the threat letters are generic template letters. That the applicant is referred to as an important member despite being a child who was still at high school at the time of the first letter and had only participated for some months at that stage reinforces this view as does the second letter also including a similar reference despite the applicant not having patrolled with in the peace committee for nearly three years.

    103.   Regarding the FIRs, I accept them to be what they claim to be, that is first instance reports by purported victims lodged at a police station.

    Claimed persecution of the applicant’s father

    104.   [Mr B], the Pakistan lawyer, described himself in his submission as:

    I am a senior advocate of [an] Association. I have been invited to speak in more than 33 countries, delivering lectures and speeches on matters relating to politics and human rights in Pakistan.

    I have served as a [role] for [a] Court and am currently Chairman of [an] Association. In this role, I have dealt with cases of discrimination, gender and Islam, traditional cultural beliefs and practices, stigmatization, and social and professional injustices across different segments of society, including juveniles, interfaith harmony, minorities, and women.

    I have also worked on [a] Commission, as a project [lawyer]. Over the last decade, I have worked on human rights, advocacy, legal assistance/legal aid, protection, democracy, and Rule of Law projects in Pakistan.

    I am also registered with Refugee Legal Aid Information, a centralized platform for immigration law practitioners, as a country expert on Pakistan. I have written numerous reports on behalf of clients throughout the world regarding issues related to authenticity of documents, gender-based violence, human rights in Pakistan, Pakistan refugee law and child labor.

    Since 2017 I have also provided evidence and legal opinions to the Immigration and Refugee Board of Canada on various topics.

    105.   [Mr B] claimed to have interviewed a cousin of the applicant, [Occupation 2] in Shangla, who claimed that the applicant’s father had left the village due to threats from the Taliban.

    106.   [Mr B] claimed to have interviewed the applicant’s father before he passed away. In his report he writes that due to the father’s political activities the father received threats from the Pakistan Taliban leaders from Swat wanting the applicant’s address as well as threatening the father for it. It is claimed in the report that as a result the father left for Lahore in 2023.

    107.   It is claimed that the father was found in Lahore and beaten as he would not divulge the location of the applicant.

    108.   [Mr B] confirmed by way of accessing court documents that a petition was filed in the Sessions Court Lahore requesting a direction be made regarding the men who beat him not to further harass him.

    109.   The lawyer’s report states that the father returned from Lahore to Shangla to visit his wife and grandchildren and then two days later died of a heart attack.

    110.   I put to the applicant that on the basis of this evidence, for the past thirty years his father has been active for the ANP and never needed to leave Shangla, even at the peak of the violence in neighbouring Swat, but many years later, when the security situation is quite good, he leaves. The applicant said that he had heard that people who his father couldn’t trust were asking about him and that his father went to the police, but they didn’t want to accept the complaint as they were unknown people. He claimed that when his father was in Lahore, he was again approached by people who were related to the Taliban and they harassed him, so he went to court and got a protection order.

    111.   I asked him whether he knew what prompted the Pakistan Taliban’s interest in the applicant again in 2023. He said that they got news that he was in Pakistan. I put to him that he left Pakistan more than 10 years ago and hasn’t returned since, questioning upon what basis such a rumour could have begun. He said that they would target people even after several years. He said that they had spies in his village.

    112.   I noted to the applicant that the applicant’s father is claimed to have led election campaigns for the ANP, had his son kidnapped for ransom, received threat letters, was on the jirga and peace committee for a decade, and yet none of these circumstances led to him feeling that he needed to seek sanctuary elsewhere until 2023. I further noted that despite all of this, and the father never being harmed for 16 years the Taliban would only in 2023 send someone to get him and even then, not when he was in his home village, but rather while in hiding in Lahore. The applicant said that he may not understand the Taliban perspective. He said that he doesn’t know as to why things happened as they did.  He said that his father could have been hiding things from him. He suggested that maybe his father was paying kickbacks to the Taliban. Furthermore, he added that they didn’t ask about his brother, who had also been on a peace committee but only about him.

    113.   It was claimed that the applicant’s father may have been threatened by the Taliban and did not share this with the children or alternatively that he was paying protection money. While it is possible that he was threatened, that he did not face any harm over the decades of being an active supporter of the ANP leads me to conclude that even if there were threats, which is plausible, time has proved that they were hollow or inconsequential threats. As for whether the father paid protection money, this was mere speculation. It was not claimed that they ever learned of this occurring. That the applicant was kidnapped and had to have money paid as ransom to free him would further undermine any such speculation. Without further evidence to support this claim I find that there was no protection money paid.

    114.   In considering the circumstances of the applicant’s father, I find it implausible that for a period of sixteen years including through the worst violence experienced in the Khyber Pakhtunkhwa province in 2007 through to 2013 the father would not need to leave to seek sanctuary despite being active with various groups that are known to be against the Taliban. And yet in 2023 some ten years after the applicant had left Pakistan the Taliban are not only once again interested in the applicant but they had operatives in one of Pakistan’s largest cities track down the father who was in hiding and beat him there as he wouldn’t disclose the location of the applicant. Furthermore, I find it vexing that those pursuing the family would be interested solely in the applicant and not the brother considering that the brother’s anti-Taliban activities were more recent.

    115.   For these reasons, I find that the father did not receive calls or any threats regarding his son, that he did not leave to go into hiding in Lahore and that he was not beaten.

    Other incidents

    116.   Mr [B]’s report noted the death of [Mr C] in 2016 as relevant to the circumstances of the applicant as he was a cousin. At the hearing the applicant described him as a [occupation] who was murdered in Swat district while on a visit. The applicant said that [Mr C] was a [senior position] in Shangla, but he clarified that it was of [deleted]. I put to him that it appears to be a senior role to which he agreed.  I noted that according to the information provided in the pre-hearing submissions he had a [driver] and a car, which the applicant concurred with. A link to a news report was provided about this murder in the same submission.[7] I asked how the killing of this man would impact him. The applicant said that it relates to him as [Mr C] was a part of his family, his [cousin]. He said that families as a whole are targeted by the Taliban.

    [7] [Source deleted]

    117.   In the same vein, the applicant discussed an attack on [an] Institute in Peshawar in 2017. He said that the Taliban knew that two people who were relatives of his were living in the Institute dormitory and that the Taliban were actively searching for them including calling their names as they came to their room. He believes his whole family is being targeted by the Taliban.

    118.   In [Mr B]’s report he describes interviewing a cousin of the applicant who was the surviving relative in the [Institute]. In the report the cousin indicated that the terrorists had called out the names of the two cousins who were sharing the same room. He claimed that they knew exactly which room they were staying in. He claimed that the terrorists broke through the door and threw a grenade in but did not then enter to pursue them. The cousin claimed that his arm was injured in the grenade explosion and that his roommate was killed.

    119.   I asked the applicant if he thought the whole attack was premeditated to kill his cousins, to which he responded that he doesn’t think so, but he said that peripherally the Taliban would have known that they were there. I put to him that one news report provided by [Mr B] suggested that the Pakistan Taliban had mistakenly targeted the institute believing it to be an Inter-Services Intelligence (ISI) base which was close by and that they targeted the wrong building. He said that would be odd. The relevant article and passage is reproduced below:

    [Deleted].[8]

    [8] [Source deleted]

    120.   I accept that a relative of the applicant, [Mr C], was killed in 2016. I also accept the details of his [background].

    121.   I also accept that another relative died in the [Institute] incident. I do not accept that the Taliban who had attacked the Institute in Peshawar had named the cousins as they were going through the building, which according to the news report provided by the applicants would otherwise house 400 students. I do not accept this as the Taliban had, according to the news report, admitted to mistakenly targeting the Institute and secondly, that no reasons were evident from the material that the cousins would have been of particular interest among what would have been 400 students or what had been due to the timing of the attack about 150 students (according to the news report). I find the claim that they were named but not then pursued beyond a grenade being thrown into the room as contributing to the implausibility. As such I find that the applicant’s cousins were in what can best be described as the wrong place at the wrong time.

    The applicant’s wife

    122.   An article about a poster in Kabul, Afghanistan, was provided at the hearing which described a need for Afghan women in Kabul to wear a veil and a hijab. I find that such evidence is not relevant to the circumstances of the applicant and his wife who would return to live in Pakistan other than as an indication of the type of life that would be imposed upon the wife if the Taliban were able to establish a caliphate or some semi-autonomous region with Sharia law in place, which I do not accept will happen.

    123.   The applicant provided a statement to the Tribunal that included the following:

    My wife does not wish her case before the Tribunal to be combined with mine. I respect her choice but I wish to state the following for consideration in my case.

    My wife and I we both got married against my wife’s family's will and we both fear that if we were returned to Pakistan we will be killed for destroying my wife’s family honour. As explained to the tribunal member during the joint hearing my wife was engaged to a much older man against her will and she refused that engagement for which she was severely beaten and threatened with death by her own father and uncle if she was to go against the family will and against the Pashtun Code of Honour.

    124.   In the psychologist’s report dated 12 October 2023 the applicant is said to have conveyed the following regarding his wife:

    [The applicant], knew [his wife], now [age] years, in Pakistan and communicated with her via WhatsApp. [The applicant]’s father paid for her to come to Australia to marry him in 2018, aged [age] years. [She] was to have had an arranged marriage to a much older man in Pakistan, but when she declined to marry him in favour of marrying [the applicant], her uncle and father beat her up to the point of putting her in hospital. When she recovered sufficiently, she emigrated to Australia to marry [the applicant]. [The applicant] commented several times in the interviews “she has been through a lot” and said he wished her no harm.

    125.   At the hearing the applicant said that her family is powerful and that it is a matter of honour and that he would not be spared. He said that a man had eloped to Islamabad with a woman from the wife’s home village and they were identified in Islamabad and taken to the mountains where they were killed. The applicant’s wife said that this couple were distantly related to her.

    126.   As noted, opportunity was provided to the applicant’s wife to provide her claims of protection from her case into his by way of submitting her statement. She chose not to, noting she has her own matter pending. Instead, she gave oral evidence at the second hearing.

    127.   She said that her mother is also a victim. She said that her mother was blamed for her eloping and that her mother cannot raise her voice in support of her daughter. She said that her mother told her that she should not come to Pakistan as the men in her family are still ready to act. She said that the applicant is a target because it was due to him that she had the courage to leave the household.

    128.   She explained that the applicant’s father arranged the flight out of Pakistan including helping to obtain a passport. She said that this was facilitated by a friend of hers by going to her friend’s house with her sister and while the sister and friend were together, she left the house and went to the passport office accompanied by the applicant’s father.

    129.   The wife’s uncle is a police officer, and it was claimed that he had beaten the wife to the point where she had to be taken to the hospital and this was only because she had spoken to the applicant. This was in 2017 when she refused to marry the other man following her engagement with him.

    130.   I accept that the applicant’s wife did not obtain permission from her family to marry the applicant. I accept that the applicant’s father facilitated her departure from Pakistan. I also accept that the wife was once beaten and hospitalised.

    131.   In considering the circumstances of the wife I note that she has made a separate protection visa application. As such, her immigration pathway is distinct from that of the applicant and is yet to be considered. For this reason, when considering the applicant’s situation, I do so under the condition of the applicant returning to Pakistan on his own but nevertheless in the context of being married to his wife.

    Discussion of the general security situation

    132.   Prior to considering the specific claims of harm the applicant has identified, I will engage with the security situation in Pakistan. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain individual risks, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, violence can occur with virtual impunity including general attacks based upon, for example, political belief or association. Such an environment may heighten the level of risk to the applicants where, otherwise, in peaceful circumstances the threats to them would be constrained. To undertake this assessment of the security environment, I shared with the applicant quantitative information as well as qualitative assessments. I also considered country information presented by the applicants and their various current and past representatives.

    133.   Relevant to this section and throughout this decision, country information provided to the Department or Tribunal regarding areas outside of Shangla were given less weight and in turn information from beyond KPK was given less weight than information about KPK. Similarly, more recent country information is given more weight than dated country information.

    134.   I read to the applicant data from the South Asian Terrorism Portal which collates reports of security incidents by district. In the applicant’s district of Shangla the report states that there have been no civilian deaths since 2009 and no incidents since 2015. The applicant responded that the security situation is not good. He said that the Afghan Taliban in Kabul had released a lot of prisoners and that the TTP were carrying out attacks in KPK specifically in Waziristan and other districts including Swat. He noted that people have started protesting on the streets as they don’t want it to happen again. He said that there are targeted killings by the authorities in Swat and Shangla that are targeting Pashtuns because every Pashtun is seen as a lackey of the Taliban. He said that authorities in KPK have the right to ‘disappear’ someone for three months without warrant or conviction. He noted that there were more than 500 terrorist attacks in KPK this year which was an increase from past years.

    135.   His brother, the witness in the hearing, said that targeted killings were increasing. He said that in 2022 the son of a member of the peace committee had been murdered. He said that the security situation was degrading day by day.

    136.   I suggested that the situation is not like it was before when the applicant had departed Pakistan, and instead it was substantially improved. I suggested that it reflected a new and improved security situation. The applicant said that even if the statistics have been going downwards, they can go back up.

    137.   He mentioned Islamic State and how cruel they are noting that they are even fighting against the Taliban in Afghanistan. He believes that the situation is getting worse and believes it could be worse than the situation in 2007 and 2008.

    138.   I noted that in Shangla, 2009 was the worst year when there were 55 civilian deaths but then since 2016 there have been zero incidents, and no deaths since 2010, that is no civilian deaths over the past fourteen years. I put to him that this is indicative of the security environment being safe. He said that this is based on what is reported in the media. He said that Shangla and the villages are remote and that when the Taliban target people a lot of incidents go unreported. He said that there have been incidents where you can’t find any references in the news. His brother affirmed the claim that there are unreported incidents.

    139.   The applicant noted that the harassment of his father in [Village 1] in 2023 is evidence of the presence of the Taliban.

    140.   In post-hearing submissions he provided internal communications between provincial police in Shangla showing the presence of terrorists. The documents include mention of three terrorists in a forest, the return of some known terrorists and ongoing patrolling in mountain areas. The applicant’s argument in these submissions was that this was an indication of the interest and presence of Taliban operatives in Shangla. He also argued that this shows that the government is playing down these developments. He provided other articles that show the police having foiled terrorist activities in neighbouring Swat.

    141.   In addition, he argued that the Taliban’s strength has been exhibited through its successes in other places and he provided a list of news articles supporting his claims in his post-hearing submission. To avoid doubt, I have read each of the articles including the longer USIP analysis of the situation.

    142.   We discussed the stated goals of the Pakistan Taliban. During the peace negotiations in Kabul in 2022 involving the TTP and the Pakistani government the TTP stressed that the reinstatement of the semiautonomous status of the ‘tribal belt’ and the implementation of Sharia were its key demands.[9] I asked if Shangla is considered a part of the tribal belt. The applicant said that it wasn’t. But he asked rhetorically, why did they come to our area? He believes that they want Sharia to be implemented throughout KPK. He acknowledged that they could have said that during the negotiations, but it was his view that because they didn’t it doesn’t mean that they don’t embrace that ambition.

    [9]  The applicant provided a link to an article which had as its title ‘TTP wants to push govt out of KP to establish Sharia’. The news article refers to its source as being the US State Department Country Report on Terrorism 2021. This report references the TTP’s push to oust the Pakistan government out of KP only in one line in a descriptor of who the TTP is. I note that in another article referenced by the applicant, the author emphasizes the TTPs current interest lies in the Tribal Belt.[10]

    [10]  I note that among the country information the applicant submitted, there was an article that notes, ‘Data on the number and location of terrorist attacks in Pakistan show a concentration near the Afghanistan-Pakistan border.’ Other material submitted by [Mr B] also indicates that the Pakistan Taliban are focused on the Afghan border. These articles buttress the view that the Taliban are focused on the Tribal Belt.

    145.   I place limited weight on the peripheral reference to the intentions of the TTP when describing who the TTP is and instead accept the more specific and numerous reports of the TTP being actively interested in the Tribal Belt areas.

    146.   The applicant stated in a post-hearing submission that the Taliban have the capacity to take over a place overnight and that simply because there isn’t a recent history of events it doesn’t mean that they can’t or won’t. This risk has been heightened, according to the applicant, following the take over of Afghanistan by the Afghan Taliban. While this analysis is theoretically correct, the basis upon which I approach this issue is on the available evidence and not speculation.

    147.   I noted that the data I have is that there is an increase in activity since the 2021 lows but only in border areas. I noted that Shangla is geographically located away from the districts bordering the Afghan border. The applicant acknowledged that the worst areas are those near Afghanistan but added that there are groups within the TTP who have their own branches such as Islamic State in Khorosan (ISIK) and that they are in Shangla. The applicant, through submissions noted that there was a recent killing of a peace committee member, Idrees Khan, in September 2022 in Swat District, but I noted at the hearing that he was an influential village elder and a peace committee member and as such had a different profile.[11] He concurred.

    [11]  I referenced country information which states that by the spring of 2021, the leader of the TTP, Mullah Mehsud, had implemented significant changes to the TTP’s modus operandi to avoid past violations that were central to its decline. His new approach significantly reduced attacks against civilians and considerably reduced civilian casualties in attacks.[12] The applicant said that one cannot expect any good from the TTP. He thought that they could be saying it to get sympathy from the public.

    [12] ‘The Tehrik-i-Taliban Pakistan After the Taliban’s Afghanistan Takeover’  The applicant said that the Pakistan army arrested the TTP’s ex-spokesperson, but then he escaped from jail. He asked rhetorically, how the most wanted person in Pakistan can escape jail without having protection from the state. He noted that Imran Khan’s picture is not allowed to be used in the media and yet a Taliban leader escapes prison. He added that the media do not report all of what is happening. He referenced the head of the PTM movement not being allowed on talk shows.

    150.   In a post-hearing submission, the applicant provided what appeared to be a post on some social media or news site. The article is from 2013 and describes a warning by the TTP against voting in the elections. Given the date of this, I place limited weight on it.

    151.   An earlier submission also included a description of an incident in which the son of a local peace committee member was shot dead in Swat District. That a person who is the son of a peace committee member is shot dead does not necessarily mean that he was shot dead because he was the son of the peace committee member. Without further information that ties the two or evidence of similar events there is little basis upon which a conclusion can be made that the children of peace committee members are being targeted.

    152.   The applicant also provided additional information relating to Swat. But as noted at the hearing, information about incidents in areas away from the Shangla District and particularly those along the Afghan-Pakistan border or those that show attacks against government security forces such as the police and army are not necessarily representative of the risks the applicant faces and as such less weight is placed on them.

    153.   In the final March 2024 submissions information was provided referring to a 2024 tit-for-tat situation between Afghanistan and Pakistan that began when seven Pakistan soldiers were killed by the Taliban in a border area of Waziristan. Another article referenced an attack on soldiers manning a border post and mentions attacks increasing in recent months.

    154.   As Pakistan went into an election in February 2024, I invited the applicants to discuss the ramifications of the election a month later which was during the third hearing. At this hearing the applicant said that the election was stolen and that the PTI were expelled and the ANP threatened. He noted how a member of the national assembly was attacked in Shangla, and his security guard killed in the lead up to the election along with some other incidents in other locations.

    155.   He said that the Pakistan military chooses who wins the election and that he fears the risk of civil unrest and civil war. He said that it would impact him because if there is no law and order, political instability, and a deteriorating economic situation then there would be violence.

    156.   The applicant noted that two people were killed while protesting the election rigging in Shangla. I noted that it has been a month since the violence, and I put to him that the situation has calmed since the election. He said that it could be calm, but what led to this are authoritarian actions. He fears that in the future people won’t be able to protest. He said people have been left with no options.

    157.   He said that the government had imposed s144 (a shorthand reference to a law that allows the government to temporarily ban protests) in Islamabad. I put to him that governments make laws to prevent protests for the reason of maintaining stability. I put to him that there are legitimate reasons for this. I noted that protesters were arrested for breaking this law.[13] The applicant’s brother said that s144 was not established for stability but to suppress the people so that they don’t come out and raise their voice and expose the establishment.

    [13]  I noted that there were a considerable number of protests around the country and yet a month later it doesn’t seem that the situation is escalating, but rather de-escalating. The applicant said that the PTI will continue to fight, demanding a judicial inquiry and consequences for where the election was rigged. He noted that the internet was banned on election day. He inferred this was an effort to prevent people letting the world know of what is happening in Pakistan.

    159.   I am conscious of the court’s judgement on the previous decision by the differently constitute Tribunal in which the member overlooked claims of harm from other terrorist groups. I note that [Mr B] explained in his submission, ‘Various militant groups from different parts of Pakistan work under the umbrella of the TTP.’ This is consistent with other country information submitted by the applicant (see for example post hearing submission Declaration of Tehreek-e-Taliban Pakistan regarding the merger of Jamaat-ul-Ahrar and Hizb-Ul-Ahrar with Tehreek-e-Taliban).

    160.   Alongside the TTP are other actors including Islamic State in Khorasan province (ISIK) which I have referred to as simply Islamic State (IS). Country information was provided of a terrorist attack by IS on July 10, 2023, against religious scholars and members of minority groups in Peshawar and another attack by IS in Khyber District.

    161.   In discussions during the hearing and in reviewing independent country information, the fear of the applicant is overwhelmingly from the TTP because of his past experiences. But the nature of the conflict is such that at any point in time the TTP could fragment, or another militant Islamist group arise.

    162.   In considering the general security situation and later the specific threats faced by the applicant I note that terrorism data doesn’t distinguish between terrorist groups. It doesn’t only collate attacks acknowledged to be by the TTP. The sources on the security situation cover all terrorist activity regardless by which name the perpetrators go by.

    163.   I note that there is no evidence before this Tribunal that would suggest the applicant faces a threat distinguishable from the threat posed by the TTP from any of the alternate Islamist groups who operate outside of the TTP umbrella. Instead, the fears he harbours and the threats he faces alongside those the community faces arise from an Islamist ideology around which various groups coalesce and as such when referring to the TTP or the Taliban in this decision I am referring to all of these groups, including those under the umbrella of the TTP as well as those operating outside of the TTP.

    164.   When considering all of what is before me, I find that the security situation in Shangla is safe and that the recent violence arising from the tensions in the lead up to the election were an anomaly. As such the personal risks the applicant faces are not amplified by the secure environment into which he would be returning to. While there is evidence that there are some TTP operatives in Shangla the data indicates that the state has been able to contain the threat that they pose to civilians.

    165.   I have also considered how the security situation may change into the reasonably foreseeable future. While the applicant expressed a fear of a turn towards authoritarianism that will lead to instability and further violence, I am not convinced that the fears of a downward spiral of instability and violence are made out noting that the hearing was held a month after the elections and the situation had returned to normal. Noting that Pakistan endures an ever-changing geopolitical landscape, and that domestic politics carries the potential for considerable upheaval the reasonably foreseeable period reaches into a shorter timeframe into the future than it would in some other countries. When looking into the reasonably foreseeable future I note the many years of stability in Shangla and the apparent lack of interest by the Taliban in Shangla and the blip of violence leading up to the election which has otherwise returned to normal and as such find that even looking into the reasonably foreseeable future the environment will remain safe.

    Considerations

    166.   I now turn my mind to the specific sources of harm the applicant fears.

    As a former peace committee member

    167.   The applicant was a member of the peace committee in 2010 for a period of about five months. He was part of a patrol that engaged in an exchange of fire with a group of people cutting down trees. As noted earlier, I found that those individuals were criminals. The applicant and others received threat letters not long after and his uncle was killed about a month later. The incident occurred in 2010 and the threat letters were received in 2010 and 2013. As I have found them to be generic template letters, I find that the applicant was included as a recipient, not because of his individual endeavours, but as having earlier been a member of the peace committee.

    168.   It has been over ten years since the last letter was received. The security situation in Shangla District has improved and has remained improved for most of that period. The applicant hasn’t been on patrol as a member of the peace committee for 13 years nor has he attended a peace committee meeting for about 12 years. There is no evidence to suggest that the Taliban have some sort of long term and secure database that retains names of former peace committee members.

    169.   I accept that his village had ‘spies’ or people who would report to the Taliban as the applicant had claimed. While those sympathizers may still be present, living among the community, that there haven’t been any incidents for such a long period of time strongly suggests that the circumstances have changed with regards to the level of support the Taliban has in his community.

    170.   The changed circumstances may include fewer sympathisers or changed allegiances; we don’t know. What is known is that there is no longer an expressed interest by the Taliban leadership in districts such as Shangla which do not lie along the Pakistan-Afghan border. The direction of the Taliban leadership is also known to include a changed strategy away from targeting civilians as the Taliban has a different leader who has publicly shifted the movement’s strategy.

    171.   The applicant though disagreed with the sincerity of the changed strategy and presented evidence in post hearing submissions to support his view which I have taken into consideration.

    172.   An additional dimension of the applicant’s concerns is that the Taliban will target the ‘politically and financially affluent people’ because if they are silenced then the ‘uneducated and poor’ will have no choice but to support the Taliban. But there is no evidence in the data to support this as the data does not indicate that civilians, affluent or not, are being injured or killed or injured in Shangla.

    173.   For these reasons I find that the applicant’s past participation on the peace committee including having received threat letters that identify him as a past member will not lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

    174.   As the 2008 forest incident occurred at night and the faces of the people could not be seen and noting that the applicant remained in his community for several years after, I find that he does not face a real chance of serious harm or a real risk of significant harm from those involved in the cutting of the trees and firing at the patrol group.

    175.   I have also considered whether upon return the applicant may join the peace committee as a representative of his family. I accept that he would do so. In considering the risk he would face I note that the situation in Shangla is such that there have not been any incidents since 2016 and no civilian deaths since 2009 and there is no evidence before this Tribunal that any Shangla peace committee members have been threatened recently. I find that were the applicant to join the peace committee he would not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

    176.   I note that there is no evidence that other groups such as Islamic State have lists of peace committee members, have spies in villages or are pursuing individuals in Shangla. For this reason, I also find that the applicant does not face a real chance of serious harm or a real risk of significant harm from these other groups.

    177.   To avoid doubt, I have incorporated into my considerations how the applicant’s mental health and his epilepsy may impact the level of risk he faces for being a former peace committee member. In doing so the impact is marginal. This is because there is no evidence to suggest that the potential persecutors are seeking to target people with the type of mental health challenges the applicant has or those with epilepsy.

    178.   I accept that there is the marginal possibility that during an highly unlikely confrontation with the Taliban while patrolling with the peace committee he would have a seizure and as such increase his level of risk. I note that this is marginal because during his albeit short time patrolling in 2008 the security situation was considerably worse and yet he had only one encounter and in addition, as discussed further below, the applicant takes medication which has effectively managed his epilepsy. Now that the security situation is considerably improved and noting his ability to partially manage his condition, I find that this scenario is so unlikely as to be remote and as such that he does not face a real chance of serious harm or a real risk of significant harm arising from such and scenario occurring.

    179.   I have also considered how the highly unlikely confrontation would be impacted by the applicant’s mental health, but I note that there is no indication in the evidence available to the Tribunal that the nature of the applicant’s mental health would lead to some adverse reaction if there was a fire fight.

    The brother’s circumstances.

    180.   The brother’s circumstances discussed above were considered in detail in a separate decision. Noting that I have found that the brother does not face a real chance of serious harm or a real risk of significant harm, I also find that as a result of the sibling relationship, the applicant also does not face a real chance of serious harm or a real risk of significant harm arising from being in a sibling relationship with his brother.

    Awami National Party support

    181.   The applicant has claimed that he and his family have been long time ANP supporters. The applicant’s own engagement with the party has included holding a governance position of a student group in 2010 and then taking up social media activity for the ANP from Australia in 2021 along with being a participant in a single protest in 2016.

    182.   The applicant’s father was an active supporter of the ANP including organising election campaigns in his district. Photographs were provided of the father alongside prominent ANP politicians and leaders. Despite being an active supporter, it has not been claimed that his father was at any time harmed.

    183.   The applicant provided a reference to a news article that the house of an ANP member of the provincial assembly living in Shangla was attacked in September 2022, but no loss of life or injury was sustained.[14]

    [14]  In turning my mind to the risk the applicant faces I note that following the threat letter received by the student group, the applicant continued to live in his home and was not harmed. When he eventually took up studies again, he returned on a weekly basis to his home and was not harmed. I accept that the President of the Pashtun Student Federation chapter in his college was subsequently harmed but noting that individual circumstances vary and not knowing those of the president it is difficult to associate the attack upon him to the letter he received, especially considering that the applicant did not face any harm or any further threats that mentioned his time on the PSF nor has his father arising from his activities in support of the ANP. As such I find that 13 years later, the applicant does not face a real chance of serious harm, or a real risk of significant harm were he to return to Pakistan arising from his and his family’s past support of the ANP.

    185.   With regards to the applicant’s social media activities in support of the ANP, I accept that he has established a following on social media under a pseudonym. But there is no way for someone without substantial resources and a willingness to commit them to uncovering the identity of the person posting under the pseudonym to connect this pseudonym to the applicant. No evidence is available to the Tribunal to suggest that the Taliban have some mechanism by which they could achieve this.

    186.   While I accept that some of the social media posts about the activities that he and his brother have undertaken in Australia would be accessible to the Taliban or other Islamist groups, there is no evidence available to this Tribunal that the Taliban monitor the global activities of the diaspora whether social media posts or participation in protests. I find it highly improbable that the Taliban would have some sort of ability to filter the vast number of social media posts that the global Pakistan diaspora create and then to filter by facial recognition technology posts and in turn identify the applicants.

    187.   I note that at least one ANP [deleted] social media post was re-posted by a prominent ANP politician living in Pakistan. I accept that this would have been viewed by some in the Taliban. But it would be extremely tenuous to link the viewing of one post by some Taliban and the possibility of then those Taliban identifying the applicant and furthermore conveying that information to some central database where records are kept such that they would be targeted in the future for their support of the ANP while in Australia.

    188.   When considering the social media activity of the applicant and the social media presence of his brother and how it impacts the applicant, I find that in no circumstances does his social media activity raise his level of risk to a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

    189.   I have also considered whether the applicant’s membership of the ANP Australia and his [role] could somehow lead to him facing harm. Noting that those that opposed the ANP and seek to harm members are the Taliban. I find that his role [would] not be known to them, even though the information would be available online, for the reasons of the scale of the available information produced by the Pakistan diaspora and the low profile of the applicant. I find that the Taliban would not be searching for this information and as such the information would not become known to them and in turn would not modify his risk profile.

    190.   I noted that he has family members who are ANP who haven’t been harmed, to which he responded that not everyone who votes for the ANP is a target of the Taliban, but if someone provides specific support to the ANP such as financial or campaign support, then they would be targeted. I accept that the applicant would provide some support to the ANP into the future but noting that none of his family have been harmed despite his father’s substantial support and that I have assessed Shangla safe, I find that his future activities in support of the ANP would not lead to him facing a real chance of serious harm or a real risk of significant harm from the Taliban arising from his and his family’s past and future contributions to the ANP.

    191.   I have also considered the claims that arose through the third hearing, namely that the government’s authoritarianism will lead to political suppression. It is evident from the material before me that Pakistan authorities did influence the election outcome by way of intimidation tactics including arbitrary arrest and detention of political leaders as well as a wider swathe of members of PTI. But the applicant is not a political leader within the Pakistan ANP, nor do I find that he will become one into the reasonably foreseeable future as holding a position in a diaspora body in a state of Australia is different to succeeding in politics in Pakistan.

    192.   There is no evidence that his family members who also support the ANP were intimidated or harassed by the state during the height of the pre-election period. He is not a member of the PTI, which itself has been disbanded and as such there is no risk that he would become one into the reasonably foreseeable future. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the state in the new post-election political landscape.

    193.   To avoid doubt these findings are not influenced by his mental health as the risk identified is a risk that is driven by actions by actors extraneous to the applicant’s actions.

    Being Pashtun

    194.   The applicant made limited references to the circumstances of being Pashtun by way of the efforts of the PTM and through some social media posts that others have made and he has reposted including for example, claims of the militarisation of KPK leading to Pashtuns being ‘marginalised on their own land.’ He noted how the national identity cards of some Pashtuns have been blocked and individuals have been detained for being Pashtun as further evidence.

    195.   The representative in oral submissions of the third hearing referenced the DFAT report which states that Pashtuns face a moderate risk of violence by state security forces.[15] But I note that the definition of moderate risk used by DFAT is that DFAT is aware ‘of sufficient incidents to suggest a pattern of behaviour’.[16] That there is sufficient evidence of a pattern does not translate into meaning that the applicant faces a real chance or a real risk of this harm occurring. The applicant’s evidence was that he was repeatedly required to provide identification at checkpoints. No other evidence of personal or familial experiences of serious or significant harm from state authorities was offered.

    [15] DFAT Country Information Report – PAKISTAN - January 2022 at [3.18]

    [16] DFAT Country Information Report – PAKISTAN - January 2022 at p6

    196.   The applicant provided news articles of the disappearances of Pashtuns who are making calls for autonomy. In one article provided by the applicant from 2023 it is noted that, ‘As per the data available through the state’s own Commission on Inquiry on Enforced Disappearances (COIED), more than 8000 people have been victims of illegal abductions since 2001.’[17] The COIED works throughout Pakistan and is not limited to Pashtun disappearances. Whereas according to an article provided by the applicant ‘The Pashtun Tahaffuz Movement (PTM), which organised the protests, has compiled a list of approximately 1,200 missing persons after speaking to families.’[18]

    [17]  The applicant made oral claims but did not provide any evidence of targeted killings by the authorities of Pashtuns in Shangla.

    198.   The applicant provided a Twitter screenshot of a claim that residents of KPK require a ‘visa’ to enter Punjab. The applicant believes that Pashtuns are systematically discriminated against noting that Nawaz Sharif, in a speech in 2017 said that Pashtuns should not be allowed to come to Punjab. The applicant said that Sharif eventually withdrew the statement. He claimed that at the same time officials from Punjab publicly said that if you see a suspicious Pashtun, report them.

    199.   I noted the size of the Pashtun population from an article provided by the applicant in which it states, ‘the 30 million-strong Pashtun community, who say hundreds of their young men have been "disappeared".’[19] Another article provided by the applicant suggested that there are 40 million Pashtuns.[20]

    [19]  I put to the applicants that they would be returning home to a place that is one hundred percent Pashtun. The brother said that Pashtuns are experiencing humiliation from the police and army, but he acknowledged that living in his area he wouldn’t face any discrimination.

    201.   Evidence was provided of discrimination that I accept would amount to serious and significant harm, specifically the blocking of the computerised national identity cards. But the country information provided in the post hearing submission indicated that this may occur when a Pashtun is relocating their residence to another province. Considering that I do not see that as a necessity and that no evidence was provided that it would be the applicant’s intention and noting that neither he nor any of his families have had their identity cards blocked, I find that there is no basis upon which to find that they would be in the future.

    202.   In considering the circumstances the applicant faces as a Pashtun in Shangla District I note that it is a part of KPK which is home to the Pashtun people. While I accept that some of the police or army may be from other provinces and that their leadership may have views that are discriminatory, by way of associating Pashtuns with the Taliban, and that they and other government officials may express them, I do not accept based on the evidence before me that while in Shangla district or on the occasions that he would travel to the capital of KPK that he would encounter discrimination such that it would amount to serious or significant harm even noting that the applicant’s mental health would make him somewhat more vulnerable.

    203.   Regarding enforced disappearances, while this and extrajudicial killings occurs the applicant and his brother’s profiles are very limited. The anti-government opinion is based on some social media posts that are not evidently from the applicant as he uses an alias. Both brothers are members of the ANP which while being against the government, politically, is not outside the established political structures. Noting the very low-level anti-government commentary and the applicant’s low profile, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the authorities by way of disappearances or extrajudicial killings because of either his or his brother’s anti-government or imputed anti-government opinion.

    Activities and profile of family members

    204.   The brother’s circumstances were considered in detail in a separate decision. Noting that I had found that the brother does not face a real chance of serious harm or a real risk of significant harm, I also find that as a result of the sibling relationship, the applicant also does not face a real chance of serious harm or a real risk of significant harm arising from the past activities of his being brother.

    205.   It is possible that the applicant’s visa pathway may diverge from his brother’s. As such I now turn my mind to the circumstances the applicant would face if his brother continued in his role as a [position] of the ANP [Chapter] while the applicant returned to Pakistan. Noting that I have found above that those that pose a threat to the applicant would not be aware of the role he played in [the] ANP, I similarly find that were the brother to continue in his role it would not add any level of risk to the applicant.

    206.   I have also considered the alternate possibility of his brother returning and alongside other family members being active in Shangla by joining the peace committee and supporting the ANP. As I have considered the circumstances of the applicant joining the peace committee and noting the applicant’s evidence that he would constitute an individual household, I find that were his brother to also join the peace committee or support the ANP, it would only marginally increase the applicant’s profile as a member of a wider family who are active in ways that would be perceived by the Taliban as being against the Taliban.

    207.   To avoid doubt, I find that on its own, the applicant being a family member of others who are members of a peace committee or supporters of the ANP whether in Australia or Pakistan would not lead him to face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

    General crime that targets the applicant

    208.   Noting that the applicant is from a well-off family and that his brother was ransomed and in other submissions there are indications of criminal activity, I discussed with the applicant the security situation and what risks he faced.

    209.   I put to him country information which indicates that the TTP leadership ‘issued a statement calling on people to not pay extortion in several northern districts of the province. “If anyone asks you for a shakedown in the name of Tehrik-e Taliban Pakistan, please contact us so we can unmask them,” the statement said, offering a number for contacting the group.’[21]

    [21]  In response to this, the applicant said that the TTP don’t have values and that they don’t respect religion. He provided examples. I noted that his views arose from his experiences of the TTP which was from before Mullah Mehsud took control and instigated the changed strategies which seek to minimise the impact on civilians. He said that there are other factions such as ISIS Khorasan and people who are just out for the money and that you can’t trust any of them.

    211.   I asked what they feared would happen to them because of their social standing including their relative wealth. The applicant said that before the Taliban came to the area it was very peaceful and everyone was respectful. He said that after the Taliban came, they targeted those who are socially or politically active as they have influence in the area. He believes that he will be targeted because of that. As his father is deceased, he said that one or the other of his sons has to be the leader of the family. Or alternatively he said that they will establish two different households.

    212.   I also note that I had accepted that someone had intentionally harassed the family home by way of firing in its vicinity and throwing stones on the roof. But I note that the applicant’s father has passed. Any animosity that he may have generated that led to those actions ten years ago would now be diminished such that the applicant would not face any lingering consequences.

    213.   In considering the impact of criminal activity and whether the applicant would be harmed as a result of the actions of criminals or the criminal activity of terrorist groups, I have not accepted that the applicant’s father was threatened or harmed as reported. I note that I have identified Shangla District as safe. There is no claim that other members of the extended family have been harmed by criminals in Shangla with the last incident being in 2013 when the brother was kidnapped but the security situation was very different. As the risk of crime is not specific to the applicant and his profile, but rather includes his family’s profile also, I place considerable weight on the experiences of the family as being indicative of circumstances of the applicant into the reasonably foreseeable future. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons arising from criminal activity targeting his family.

    214.   To avoid doubt I have considered how the applicant’s mental health could impact these findings and noting that the harm identified by the applicant arises from individuals whose actions are extraneous to the applicant’s actions, the findings were not influenced by the applicant’s mental health.

    Returnee from the West

    215.   We discussed the impact of the applicant’s ten years of living in Australia. The applicant said that since living in Australia he has realized the meaning of freedom. He said that here he can go to the mosque and pray freely.

    216.   He said that he now notices the actions of the Pakistan authorities such as when he sees the news about how the Pakistan army and police are treating Afghan refugees (demanding their departure from Pakistan), who are Pashtuns, and some of whom have been living there since the 1970s. He lamented that these Afghans had to sell their assets at a quarter of the real price, yet even then no one was buying as they know the Afghans will have to leave the assets behind.

    217.   The applicant said that the ten years in Australia have brought a change in his life as has the time that his wife has been in Australia. He said that they have adopted a different type of life and that local people in Shangla will think of their way of life as different such that they will be more noticeable.

    218.   He said that his interactions with colleagues in Australia is different including for example, not needing to go to the mosque five times a day. He said that if he didn’t do that in Pakistan he would be seen differently by the local people.

    219.   I note that the applicant continues to go to mosque and pray while in Australia, but he fears that it is less often than would be expected of him. The applicant would socialise in their home community but maybe less so according to his brother. The brother suggested that they would wear different clothes, and this would make them more identifiable.

    220.   In considering the applicant’s circumstances I note that even were they to continue as they are currently while living in Australia, the harm identified by them was that the community would inform on them to the Taliban.

    221.   But as has been noted above, the presence and activity of the Taliban in Shangla is limited by its leadership’s choice if not also curtailed by the security forces. In addition, there are many profiles of people that would raise the ire of the Taliban if they were present and active in Shangla. First and foremost, would be members of the peace committee who support the army that is working against the Taliban, somewhere near the end of such a list would be people who attend the mosque less often or wear clothes that don’t align with Taliban values. Yet, as has been detailed above, there have not been any incidents for several years against civilians including peace committee members. For this reason, I find that the applicant’s Western values will not lead to the applicant being harmed by the Taliban.

    222.   To avoid doubt I have considered how the applicant’s mental health could impact these findings and noting that the harm identified by the applicant arises from individuals whose actions are extraneous to the applicant’s actions, the findings were not influenced by the applicant’s mental health.

    223.   I also find that there is no supporting evidence to suggest that the community themselves would actively harm them, as opposed to just perceive them differently having returned from the West. This claim by the applicant and his brother is not unusual considering the large Pakistan diaspora that travels abroad, many of whom seek out study opportunities in Western countries. Living abroad takes someone away from their home culture. In addition, I acknowledge that the applicant’s mental health makes him more vulnerable and as such any harm may be amplified to an extent greater than what would be felt by others. But even there is no evidence before this tribunal that living in the West and then returning would be perceived negatively by neighbours and the community such that a person with the applicant’s vulnerabilities returning to Shangla or more broadly KPK would experience serious or significant harm from the community.

    224.   For this reason, when considering the applicant being a returnee from the West having spent ten years in Australia and adopted some cultural traits, I find that the applicant would not face a real chance of serious harm or a real risk of significant harm for these reasons from the community or the Taliban including all insurgent and Islamist groups.

    Harm from the family of the applicant’s wife

    225.   I note that there is limited information available to me regarding the applicant’s claims as she has lodged a separate protection visa application and chosen not to provide the evidence in that matter for this matter.

    226.   I put to the applicant that the information available to the Tribunal is that honour killing in Pakistan is disproportionately focusing on woman.[22] He said that he believes that both he and his wife would be killed.

    [22]  He said that his father has not received any threats from his wife’s family, or if he did, he didn’t mention them to him. He believes this is the case because, the matter is not between the families but specifically relating to him and his wife.

    228.   I noted that the applicant had earlier explained the purpose of the jirga is to resolve marital issues and as such I asked whether his matter was considered by a jirga. He said that in such instances it is not to be considered by a jirga as the family would want to keep it secret. I put to him that as it has already been claimed that honour has been lost then it is a public issue and that the matter is not secret. I put to him that people would know that she has married someone she should not have and that it would go to a jirga for it to be resolved. He suggested that the family may not be willing to resolve the issue through the jirga. He said that they are waiting for her to return so as to kill her.

    229.   I said that many people will make idle threats and not follow through with them. She said that her immediate family have not killed anyone, but families do follow through with threats. She said that she knows her family. She said that the example of the people from her village who were killed in the mountains was of a distant relative. She said that it was known that a relative killed them. When I asked about the name of the people who were killed, neither the wife nor applicant could remember.

    230.   With regards to the impact the wife’s family may have on the applicant’s level of risk, it ultimately turns on the family’s past behaviour and the norms of the society in punishing the male. I note that the wife’s family, other than the narrative of a distance relative in their village being killed have not sought to harm the applicant’s family, in particular the father who facilitated the departure, nor have they sought reparations through the jirga. That the wife was beaten but then remained in Pakistan for the remainder of 2017 and a part of 2018 before coming to Australia lends some weight to the family not intending to kill her and in turn him. I also factor into my considerations that country information provided to the Tribunal by the applicant indicates that honour is redeemed through the punishment of the ‘wayward’ female and not the male. For these reasons, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from the wife’s family.

    231.   To avoid doubt I have considered how the applicant’s mental health could impact these findings and noting that the harm identified by the applicant arises from individuals whose actions are extraneous to the applicant’s actions, the findings were not influenced by the applicant’s mental health.

    The applicant’s epilepsy

    232.   The applicant’s epilepsy was discussed at the hearings. It was also raised at the first hearing of the differently constituted Tribunal in 2017. At that hearing a claim was raised that ‘the local people would say that he was possessed or that he had the devil in him’.

    233.   Following the applicant’s post hearing submissions, I prepared a letter requesting further information on the applicant’s epilepsy noting that country information indicated that his medication is available in Pakistan[23], that there are regular awareness campaigns and that an estimated 2 million people in Pakistan have epilepsy.[24] In addition, in other surveys, one of which was of Pakistan school teachers the overall view towards those with epilepsy was ‘generally positive’ indicating that the claimed stigma is not present.[25]

    [23]  Through the post-hearing correspondence, I requested information about the regularity of his seizures. In the response the applicant did not answer this question. As it coincided with the Pakistan elections the applicant was called back to the Tribunal to further discuss the matters arising from his epilepsy and the country information relating to post-election Pakistan. This was the focus of the third hearing.  

    235.   At this third Tribunal hearing, claims of stigma and access to medication were discussed.

    236.   The applicant said that he has not had a seizure since his medication was increased around Christmas 2023. Prior to that he didn’t have a seizure for three years. The applicant said that when he takes his medication, he does not have a seizure until at some point the medication becomes less effective and then his doctors advise him to increase it.

    237.   With regards to the availability of the medication I noted that the medication he is on, [is] manufactured in Pakistan[26] and that it is sold in Pakistan[27]. While the representative suggested that there are fake drugs available in Pakistan. No evidence was submitted to indicate that [this one] is one of those.

    [26] [Source deleted]

    [27] [Source deleted]

    238.   As noted in correspondence, there are estimates of up to 2 million Pakistani people with epilepsy. The applicant said that there may not be the medicine in his locality and that he may need to drive further afield to access it. He suggested that he may need to go to Islamabad.  

    239.   The representative provided links to articles among which there was evidence of Pakistan facing medicinal shortages for a variety of reasons. The applicant described this as potentially impacting his ability to access the medication.

    240.   In addition, among the package of material provided to the Tribunal was an article ‘Nature and extent of perceived stigma among epileptics in Pakistan.’ The article describes the challenge of undertaking research on stigma and in particular distinguishing between self-perceived stigma and lived experience stigma:

    The person with epilepsy appears to have a “world view” about epilepsy, often leading to the expectation of stigmatization. It may be the expectation, then, rather than the experienced   stigmatization, that makes epilepsy such a burden to some patients. It is hard to quantify the role of society in the stigmatization of persons with epilepsy.

    241.   This article concluded with a note:

    A very interesting observation is, comparison of the findings of our study with a study conducted in Pakistan in Department of Neurology, Jinnah Postgraduate Medical Centre, Karachi, Pakistanin 1997. Contrary to the observations of our study regarding stigmatization, results of that survey did not indicate a very strong stigmatization in   Pakistan.

    I noted this to the applicant and described the findings from the second article.[28] In summary,

    there is a marginal association between epilepsy and educational possibilities, performance of daily duties, and the possibility of marriage and having children…In conclusion, it should be pointed out that none of the observations cited in Table 2 are statistically significant (P > 0.05), a finding that suggests that stigmatization of epilepsy is not an important feature in the culture of Pakistan.

    [28] Epilepsy in Pakistan: Stigma and Psychosocial Problems. A Population-Based Epidemiologic Study  In a submission dated 20 March 2024 the applicant’s representative submitted references to two other articles. While these articles identified some people as believing epilepsy arose from Jinns or a curse of God, importantly, none refer to any harm that would be relevant to the applicant other than a competing views on the possibility of social segregation and employment discrimination.

    243.   Despite the inconclusive nature of the academic research on social stigmas I note that the article which does identify social stigma included it occurring in educational settings and in finding a marriage partner, both issues that are no longer relevant to the applicant. It did identify other settings such as job opportunities and segregation.

    244.   Another study indicated that traditional medicine and Ruqya (Ruqya is an Arabic term defined as ‘the practice of treating illnesses through Qur’ānic [verses] and invocations as prescribed by the Messenger of Allah.)[29]

    [29]  The applicant argued that of the two research pieces discussed at the hearing they were undertaken in Karachi which is more modern, and cosmopolitan compared to the locality in which he lives. I accept this.

    246.   I note that the psychologist provided an opinion that if the applicant’s psychological symptoms are ‘untreated, his epilepsy will increase in severity, and he will continue to suffer frequent seizures.’[30] It is not apparent that the psychologist has the necessary qualifications to make such a medical assessment. I also note that the psychologist’s report is rife with assertions regarding her views on the applicant that extend beyond the specific expertise of psychologists and include views on the applicant’s risk of harm in Pakistan. I place no weight on the psychologist’s views on his epilepsy other than accepting that if the applicant’s mental health were to deteriorate such that he was unable to manage his own medication regime, then he would suffer more frequent seizures.

    [30] [Name], 23/12/2016

    247.   In considering the evidence as a whole, I find that the applicant’s epilepsy can be managed through the regular taking of his medication which is available in Pakistan. While Pakistan is facing some economic challenges there is no evidence before me that indicates the availability of the specific medication the applicant requires is threatened. On the contrary, the information discussed at the hearing shows that it remains available.

    248.   I note that his wife or other family members would be available to provide him with reminders if he was to forget to take his medication based upon any impact his mental health may have.

    249.   It is possible that the current dosage of medication will at some point be insufficient to manage his epilepsy and if this were to occur, I find that he would be able to access medical advice as to whether increasing the medication or an alternative medication would be appropriate.

    250.   If the applicant had a seizure at some point into the reasonably foreseeable future, it is relevant to consider the wider social milieu he would be living within. I accept that the applicant does live in a more traditional/conservative area of Pakistan where there would be perceptions among some that epilepsy arises from demonic possession or the like. As such, the applicant may face some degree of derogatory commentary and differential treatment were he to seek employment, but the applicant is from a well off and high-status family and as such his omission from certain work opportunities would not lead to serious or significant harm. While the applicant may face some social segregation in society, depending upon which research article one turned to for insight, it cannot be ignored that he is from a high-status family and as such this would counteract to some degree any inclination of society to isolate him. I also note that there are ongoing campaigns informing the Pakistan people about epilepsy and that his presence would amplify those positive messages. I find that the psychological impact of any isolation that he faces does not amount to serious or significant harm even noting that he has an already heightened mental health vulnerability.

    251.   It is possible that some family members will encourage him to take a traditional approach to the treatment of his epilepsy. What is suggested in the academic literature referenced in the final submission is that it includes medicine and the recitation of certain verses of the Koran, in other words praying for Allah to cure him. The applicant mentioned that this mother may adopt traditional methods. I find that the applicant being suggested to engage with these approaches, including from his mother, does not expose him to serious or significant harm were to refuse them.  

    252.   When considered as a whole, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from his epilepsy.

    Cumulative considerations

    253.   I now turn my mind to consider the entire circumstances of the applicant noting that some risks of harm would overlap and compound, increasing the possibility of serious or significant harm. For example, the applicant’s profile among the Taliban and others who are against the Pakistan government would compound for reasons of being on a peace committee, a member of the ANP, a Pashtun and being related to his father and other family members who have a similar history and having just returned from the West. Another example of compounding risk is his epilepsy and being a member of a peace committee on patrol.

    254.   Alternatively, from the perspective of the government, the harm he faces from any anti-Pashtun sentiment, blowback arising from any actual or imputed anti-government political opinion and being associated directly and through his family with the ANP can cumulatively lead to the amplification of risk for the applicant from the government.

    255.   There is also the compound risk of harm from his the police man who is a member of his wife’s family and the possibility that together with his ANP profile could be used to leverage the resources of the state and harm him that way.

    256.   But in all cases, whether looking at it from the perspective of the harm that can arise from the Taliban and other Islamist forces, from the government or the community including the wife’s family, the instances where the compounding impacts the risks, or the harm, amounts to only marginal increases. 

    257.   When considering all of the possible permutations of the applicant’s risk profile and how each interacts with the other and taking into consideration the marginal amplification, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal even when considering his vulnerability arising from someone who has mental health challenges.

    CONCLUSION

    258.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

    1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

       DECISION

    261.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Denis Dragovic
    Deputy President

    
    
    

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Jurisdiction

• Statutory Construction

• Standing

• Natural Justice