2304810 (Refugee)
[2024] AATA 1417
•17 January 2024
2304810 (Refugee) [2024] AATA 1417 (17 January 2024)
DECISION RECORD
DIVISION: Migration & Refugee Division
REPRESENTATIVE: Ms Catherine Farrell
CASE NUMBER: 2304810
COUNTRY OF REFERENCE: Pakistan
MEMBER: Paul Noonan
DATE: 17 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.
Statement made on 17 January 2024 at 11.52am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – political opinion – a proponent and long-term member of the ANP – religion – Sunni Islam – race – Pashtun – applicant has been attacked in the past by members of the Taliban – family is broadly associated with the ANP – membership of the particular social group – a Pashtun residing in Swat – a person living with mental illness – a returnee from a Western country – continued and extensive history of mental health treatment – applicant will not be able to access effective protection – heightened risk presented by his poor state of mental health – there is currently a real chance of serious harm to the applicant anywhere in Pakistan – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [date] February 2014, as a holder of a Student visa, and had travelled on a Pakistan passport issued on [date] 2013 and valid to [date] 2023.
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 28 April 2014.
The Tribunal accepts, on the basis of passport retained on the Department file and the delegate’s assessment as such, that the applicant is a citizen of Pakistan and has assessed his claims against that country.
On 26 October 2015 the applicant attended an interview with the delegate. The delegate refused to grant the visa on 12 January 2016.
On 22 January 2016 the applicant applied for review of the delegate’s decision.
On 22 June 2017 the applicant attended a Tribunal hearing (differently constituted).
On 6 February 2018 the Tribunal decided to affirm the delegate’s decision. The applicant appealed the Tribunal’s decision to the Federal Circuit and Family Court of Australia. On [date] March 2023 [Judge 1] order as follows:
·A writ of certiorari be issued directed to the second respondent quashing the decision dated 6 February 2018.
·A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s application according to law.
·The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
In summary, the Court found that the Tribunal’s finding that it would be reasonable for the applicant to relocate internally in Pakistan to avoid a real chance of persecution in his home area was a finding not made according to law. The Court found that the Tribunal misconstrued a report before it by the applicant’s treating clinical psychologist. The report contained an opinion that the applicant’s mere presence in Pakistan would have a serious adverse psychological effect upon him. The Court concluded that the Tribunal did not consider whether the applicant’s mere presence in Pakistan would have a serious adverse psychological effect on the applicant in considering the question of the reasonableness or relocation and that, in doing so, the Tribunal erred in its decision.
The applicant appeared before the Tribunal on 24 November 2023 and in a resumed hearing on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s witnesses, Mr [A] and Dr [B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by Ms Catherine Farrell of Clothier Anderson – Immigration Lawyers. Ms Farrell attended for the entirety of the Tribunal hearing.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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 a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
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.
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
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’).
‘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.
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
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 (DFAT)expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal discussed with the applicant his past and current reasons for fearing persecution should he be required to return to Pakistan. The applicant and his representative confirmed (in summary) that these are as follows:
·As a secular resident of Pakistan. When asked for more detail on this claim the applicant explained that secularism is embedded in the philosophy of the Awami National Party (ANP), the political party that he supports. He submitted that to him this means non-violence, democracy, freedom and gender equality. He submitted that the ANP effectively works for human advancement. As such this claim is a component of his political opinion claim as follows:
·As a proponent and long-term member of the ANP in Swat Province, Pakistan. He fears that the Taliban will kill him because they see the ANP as their opponents and because the ANP were instrumental in the grand military operation carried out against them.
·Because he worked for his local Village Defence Council (VDC) and identified Taliban households. As a result of this work he claimed that Taliban members were detained and killed. He fears tribal retribution by the children of those he helped identify. He also fears persecution by the Taliban because members of the VDC are perceived to be pro-military and pro-government.
·Because he was a proponent of development and foreign aid in Swat as a member of the non-government organisation (NGO) [ORGANISATION 1], the Taliban will target him and kill him. This is because, while undertaking this work, he visited girl’s schools and helped distribute supplies to those schools. He also worked as a local organiser and distributor of food and held seminars about human rights.
·Because he is a person living with mental illness. He fears he will not be able to go out at night as he carries tension and trauma and can be paranoid and would suspect everyone. When asked about the perpetrator of harm, the applicant stated that he does not fear he will be targeted for persecution specifically because of the state of his mental health; however, he does fear that, if he is required to return to Pakistan, his mental health will deteriorate.
·Because he would be a returnee from a Western country. He believes that the Taliban are against Western countries. He has Western attitudes with respect to human rights issues. His lifestyle has changed. He believes the Taliban will persecute him because of this and his past residence in the West.
The applicant informed the Tribunal that he travelled [overseas] in 2022 to visit his family and get married. His new wife then returned to live with his mother and family in his hometown of [Town 1] in Swat. Currently his wife, his mother and some siblings, including one brother, live in the family house. His sisters live in [Town 1] with their families. He has two other brothers currently living in [Country 1] who work in [a field]. He confirmed that he follows Sunni Islam and his ethnicity is Pashtun. Since being in Australia he has worked in a number of jobs and for the past three years he has worked as an [occupation].
The applicant informed the Tribunal that he first moved away from the family home in 2007. He started classes at university in Peshawar in January 2008 and lived at university for the next five years. He undertook [an] internship near his village in 2013 for seven months but otherwise has not worked as a [occupation]. In 2009 his whole family lived in Peshawar during the military operation against the Taliban.
When it was decided that he would depart Pakistan, his father arranged and paid for his passage to Australia. His father worked as a contractor for 35 years in [Country 1].
The applicant informed the Tribunal that, while at university, he had joined the ANP student [wing]. He had done so in 2008. In late 2009 he had become a [senior position] of student programs. This involved helping new students and arranging events such as book fairs, cultural nights, music concerts and collecting donations to support students. This role ceased at the end of 2010 and his membership had ceased altogether at the end of 2012. During his time as a student he also joined the [ORGANISATION 1]. He did not have a formal role with them. He did help organise aid distribution but mainly worked internally at university organising seminars and competitions.
With respect to the ANP, the applicant submitted that his whole family were members. He joined officially through his affiliation as a student. There was no need to for him to be formally registered as a member as everyone just knew him as a member. He would just attend local meetings. He did not have any formal role in the ANP. He did work with them a lot though, especially during elections. He would campaign and distribute ballots and did so during the 2008 and 2013 elections. He also prepared voter lists and attended campaign rallies. His father was not active as he spent his life outside Pakistan. His paternal uncles were active with the ANP.
The applicant submitted to the Tribunal that, at the end of 2009 when visiting his family home, he became involved in the local VDC which had been formed after the army operation against the Taliban. He participated in a military search operation identifying Taliban houses. He also passed on army messages such as curfew notices to the public. The applicant claimed that, as a direct result of his own activity with the VDC, a local Taliban commander was identified and killed by the army. He also identified other local Taliban and they were ‘disappeared’ by the army. He agreed that every member of the VDC had the same role and every household gave one member to be a member of the VDC to conduct safety patrols. He agreed he was not living in the village at that time but he did come back on occasion during holidays and he claimed that this was when he performed these VDC tasks.
The applicant submitted that since being in Australia he has maintained contact with his community and participated in locally convened ANP meetings. This has been important for him from a social perspective and for him to continue to understand what is going on in Pakistan.
The Tribunal discussed the applicant’s claims of past harm with him. He stated that the first direct encounter he had with the Taliban was at the start of 2008 when he was driving his mother to the doctors. They stopped him on a road bridge and took his car. He was not injured. Following this he went to the local Taliban commander, a man named [Mr C], and complained. [Mr C] attacked him with the butt of a gun. He threatened to report them to the police and [Mr C] said he would not spare his life if he did so. Nevertheless, the applicant stated that he proceeded to report the stolen car to the police. The police registered his report but did not give him any paperwork. That evening the Taliban came to his house. They hit him with a rifle butt. They then pushed all of his family outside and destroyed the house with explosives. The family moved into his grandmother’s house and he went back to university. He did not go back again until after the military operation. Prior to leaving, however, he said he participated in an ANP meeting at his uncle’s house in which it was
resolved to petition the government for help against the Taliban. The applicant agreed that such meetings were being widely held at that time. He submitted that somehow the Taliban knew the details of everyone who had attended that meeting. He submitted that his brother, who was living there, did not attend the meeting as he was not as active in the ANP as he was.
The applicant informed the Tribunal that he had not been physically harmed in Pakistan. He had heard a bomb blast in Peshawar in 2011 and had fainted in the street but had woken up and taken a taxi home unharmed. He submitted that in March 2009 the Taliban came looking for him and his uncle, and his aunt was killed by the Taliban. He was at university and his uncle was living in Karachi at that time. He told the Tribunal that soon after this event the military operation had commenced. He also submitted that his uncle [was] killed in November 2013 in Karachi. While there has never been a conviction for this he submitted that the perpetrators must have been the Taliban.
The Tribunal took evidence from Mr [A] who stated that he grew up near the applicant. [Mr A] stated that the VDC commenced after the military operation in 2009. The role of the VDC members was to expose militants, provide security in the street and help the village. Like his own family, he stated the applicant’s family were against the Taliban. He knew that one of the applicant’s aunts had been killed by them and that his uncle had been killed but not in the village. He noted that prior to the military operation the Taliban had full control of the area and the police were ineffectual.
The Tribunal discussed with the applicant that it may appear implausible that he would seek to escalate the claimed incident with his car given the Taliban were largely in control at the time and he had been attacked and threatened with death by a Taliban commander should he report the incident to the police. The Tribunal noted [Mr A]’s evidence was that the Taliban were in full control and the police were ineffectual. The Tribunal put to the applicant that, given such circumstances, it may find it surprising that he would nevertheless report that his car was stolen by the Taliban to the police. The applicant submitted that he was naïve, this was his first encounter with the Taliban and they had only really gained full control recently. The Tribunal accepts as plausible that the applicant may have gone to the police given his youth and sense of grievance, even in the face of the death threat and assault against him. It follows that the Tribunal accepts the subsequent claim that his family home was destroyed and he was badly assaulted again by the Taliban as retribution.
The Tribunal accepts the applicant’s claim to have been involved in a subsequently held ANP meeting. The Tribunal rejects his claim that he was of any specific heightened ongoing adverse interest as a result of his attendance at this meeting over and above the adverse profile generated by his actions with respect to the stolen car. This is because he was not a member of the ANP and was in fact based many miles away in Peshawar where he was studying on a full-time basis. His proposition that he was identified as being a significant participant of the meeting by the Taliban, as opposed to other members of his immediate family such as his brother, is therefore highly implausible. The Tribunal therefore also rejects the applicant’s assertion that his aunt was killed by the Taliban specifically while they were searching for him although accepts that it is plausible that she was killed by the Taliban at the height of their adverse activities in the region at the time.
The Tribunal accepts that each non-Taliban household was involved in the VDC post the military crackdown; however, it has serious concerns about the applicant’s claim to have been an active member of the VDC who directly identified Taliban commanders post the crackdown and was identified as such by the Taliban. This is because the function of the VDC was to provide security to the village post the military crackdown and the evidence reflects that every member of the VDC had similar roles and all households were involved. The applicant was largely absent from the village and there is no plausible way he would be
specifically identified as having done such things. Further, and as discussed, many immediate family members of the applicant including his wife live in his home village to this day and it is implausible that they would not be of adverse interest to the Taliban or the bereaved families, who the applicant says still live in the village, if he had been directly responsible for (and identified as such), for the past death of Taliban figures as claimed. The applicant submitted the Taliban are only interested in persons who have been active against them and not their family. The Tribunal rejects this explanation as implausible and gives far greater weight to the fact that the applicant has many close relatives residing without harm in his home village and considers this is because they are of no adverse interest to the Taliban. As such, the Tribunal is satisfied that the applicant is also of no adverse interest to the Taliban for reason of claimed activities in the VDC and that he has embellished his role in the VDC. The Tribunal rejects the applicant’s claim that he directly identified Taliban commanders and was responsible for their execution and that this is known to local Taliban and their families living in the village to this day as implausible for these reasons.
With respect to the applicant’s uncle’s death in Karachi, the applicant merely speculates that this was due to the actions of the Taliban. Mere speculation and conjecture does not provide a basis for making a finding of fact and the Tribunal gives this death no weight.
The Tribunal accepts that the applicant is an educated person who has studied at university. The Tribunal accepts as plausible that he had some role in student-related ANP activities and charities while at university. However, these activities were primarily centred on his university. The Tribunal accepts that he was involved in some charitable work post the military crackdown, however, is not satisfied that any such activity would raise his profile to a level specifically of adverse interest to the Taliban many years later. The Tribunal notes that, outside of the claimed incidents related to his vehicle, he was not harmed at any stage in Pakistan.
The Tribunal considers that the applicant has presented some embellished evidence with respect to the reasons he would personally be of ongoing adverse interest to the Taliban. It has rejected some aspects of his evidence as implausible and notes that he has immediate family living in Swat including his brother and wife who are unharmed, which strongly reflects he is not of ongoing personal adverse interest to the Taliban or other militants. However, the Tribunal accepts that the applicant has been attacked in the past by the Taliban and that his family is broadly associated with the ANP. Further, that he is involved with ANP activities in Australia and uses this as a conduit for socialisation and connection with Pakistan and has done so for some time. The Tribunal is satisfied that this activity has not been undertaken solely for the purposes of strengthening his refugee claims given the Tribunal accepts he was similarly involved while at university in Pakistan. The Tribunal notes that the ANP remains a significant political presence in Pakistan, particularly in areas around and including Swat and advocates for the rights of Pashtuns and is anti-militant. The Tribunal accepts as plausible that the applicant will continue to participate in ANP activities upon his return. DFAT assesses that currently ANP members face a moderate risk of terrorist violence. Recent documented significant attacks by militants against ANP related targets have been centred on the geographical areas in and around Swat including Peshawar/Khyber Pakhtunkhwa.1
The Tribunal also notes the latest DFAT report assesses that Pakistan people of the Pashtun ethnicity living in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings.2
1 DFAT Country Information Report, Pakistan, 25 January 2022, p. 28–29
2 Ibid, p. 20
The Tribunal has rejected the applicant’s claims that he is of personal ongoing adverse interest to the Taliban for reason of his participation in an ANP meeting leading to the military crackdown and because of his activities in the VDC identifying Taliban commanders as not credible. However, the Tribunal must consider the real chance of serious harm to the applicant with respect to the accepted aspects of his profile that would be identifiable to a resurgent Taliban in Swat.3 These aspects are a person involved with the ANP and who is a Pashtun returning to Swat. 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.4 Given the above country information, and the aspects of the applicant’s accepted profile as set out above, the Tribunal is satisfied that there is a real chance of serious harm to the applicant from militants for reason of his political opinion due to his involvement with the ANP and also the state security services and military due to his ethnicity as a Pashtun residing in Swat. The applicant’s fear of persecution is therefore well-founded.
The Tribunal must also consider whether the applicant can obtain protection in Pakistan. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
With respect to state protection, the latest DFAT report states that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis). Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.5
Further, DFAT assesses, with respect to the police in Pakistan that: Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security
3 International Crisis Group, ‘Keeping Turmoil at Bay in Pakistan’s Polarised Polity,’ 25 May 2022
< polity>.
4 Chan Yee Kin v MIEA (1989) 169 CLR 379
5 DFAT Country Information Report – Pakistan, 25 January 2022 p. 40
forces and the judiciary. The public perception of police is generally poor, although it has reportedly improved in recent years. Police work in Pakistan is poorly paid and dangerous. Individual police officers often augment their salaries with bribes. Terrorist attacks by militant groups frequently target police. A total of 28 police were killed and 26 injured in terrorist attacks and sectarian violence in 2020. There are no centralised or national law enforcement databases or criminal records, which makes it hard to track or locate offenders. Provincial police forces operate independently, with no nationwide coordination or training standards.
The UN, Human Rights Watch and Amnesty International have reported widespread human rights violations, including torture and other ill-treatment, arbitrary detention, extrajudicial executions and enforced disappearances by the police, Rangers and Frontier Corps.6
Given the above, and the country information with respect to the danger to Pashtuns from the authorities, the Tribunal is satisfied that there is a risk, that is not insubstantial, that the applicant would be subject to ill-treatment in Swat by the authorities including arbitrary detention and serious ill-treatment including torture and they do not provide effective protection from the real chance of serious harm posed by the Taliban and other militants to the applicant. The Tribunal is satisfied on this basis that the applicant will not be able to access effective protection, and that a real chance of serious harm to him will remain if he returns to his home area.
The Tribunal must also consider whether there is an area within Pakistan where the real chance of serious harm to the applicant does not exist and if it would be reasonable to expect him to remain in that area. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow,
Hayne & Crennan JJ, Callinan J agreeing.
The Tribunal discussed with the applicant that Karachi where he has two other uncles residing may be an area in Pakistan where the real chance of serious harm to him does not exist. The Tribunal discussed that DFAT assesses that outside of the areas in and around Swat, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations.7 The Tribunal noted that DFAT advises that there are an estimated 20–25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere. Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces.8
6 DFAT Country Information Report – Pakistan, 25 January 2022 p. 41
7 Ibid. p.20
8 Ibid. p.20
The Tribunal discussed with the applicant that this country information may reflect that as a Pashtun who is not associated with extremism, is educated and has spent time in the West, he could safely relocate to a city such as Karachi where, given the numbers of Pashtuns and his profile, it would be unlikely that he would come to the adverse attention of the authorities or anyone else. The applicant submitted that many Taliban and extremists migrated to Karachi and other cities during the crackdown. He submitted that his affiliation with the ANP and VDC would make him a target there.
The Tribunal put to the applicant that the latest statistics do not reflect an active targeting of Pashtuns by extremists. While aware of some reports of low-level civil unrest between Sindhi nationalists and Pashtun shopkeepers in 20029 overall, with respect to the security situation in Karachi in so far as it relates to the real chance of serious harm to Pashtuns, the South Asia Terrorism Portal assessed that in 2022 terrorism-related incidents were at an all-time low in Sindh and there were no reports of mass casualties or attacks against Shia or Sunni targets in 2022.10
The Tribunal also discussed with the applicant that DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country.11 The applicant simply submitted that he believed his profile and Western way of life habits would make him a target. The Tribunal places weight upon the DFAT assessment in this regard and finds that there is no real chance of serious harm to the applicant purely because of his having lived in the West and because he would be returning as a failed asylum seeker.
The Tribunal then turned its attention to the question of the applicant’s mental health in considering the real chance of serious harm to the applicant if he were to relocate to Karachi or any other large city in Pakistan. The Tribunal took evidence from his current treating physician, Dr [B]. The Tribunal also had before it a written opinion from Dr [B] dated 21 November 2023. Dr [B] informed the Tribunal that the applicant can currently function very well and that he interacts in a respectful, perceptive and intelligent manner. His report sets out that when he first presented he displayed significant symptoms of general anxiety disorder, post-traumatic stress disorder (PTSD) and some symptoms of clinical depression. In Dr [B]’s opinion there is nothing about the applicant that would make him stand out from the ordinary person. He has no issues with respect to workplace relations in Australia. Dr [B] noted that the applicant has discussed with him that if he went back to Pakistan he fears a rekindling of PTSD and depression. He has recounted symptoms of fearing being followed at night and suffering from obsessional thinking. Dr [B] noted that as of today the only manifestation of PTSD is the stated fear of night-time following. Otherwise the applicant’s daily behaviour patterns are as normal as anyone else. Dr [B] stated that this is an improvement upon his earlier symptoms manifesting as stated flashbacks, avoidance behaviour and claimed sleeplessness manifesting as significant symptoms of general anxiety disorder, PTSD and clinical depression. Dr [B] advised that treatment continues.
Ms Farrell submitted that previous medical evidence presented to the Tribunal reflects a past diagnosis of PTSD. While Dr [B] has given evidence that the applicant’s condition has improved since then, Ms Farrell submitted that the evidence reflects a retriggering of these symptoms is possible in a place such as Karachi given the ongoing instability there. She referred to the previous medical opinion which provided an opinion that, should these symptoms take hold the applicant’s capacity to function would be made redundant. She submitted that the applicant would be unlikely to be able to access required therapy and that
9 Calls for calm as ethnic strife threatens peace in Sindh - Pakistan - DAWN.COM
10 Terrorism Assessment, Sindh (satp.org)
11 DFAT Country Information report, Pakistan, 25 January 2022, p. 44
this would render relocation unreasonable. Following the hearing Ms Farrell advised that the applicant’s treating general practitioner currently prescribes medication to treat anxiety and depressive disorder and forwarded medical advice reflecting that advice.
The Tribunal accepts that the applicant has suffered general anxiety disorder, PTSD and clinical depression in the past. The Tribunal notes that the evidence before the Tribunal reflects that he has made progress with respect to his mental health to the point where he now functions well as a productive member of society in Australia while still requiring medication and ongoing physical treatment. The Tribunal has considered the past opinion that the applicant may not be able to function if required to return to Pakistan and gives this some weight. The Tribunal also gives weight to Dr [B]’s evidence that the applicant has made significant strides in his treatment to the point where he largely functions as an ordinary person. The Tribunal accepts that that applicant fears a regression in his mental health as he has stated to both the Tribunal and Dr [B]. The Tribunal is mindful in this case that the applicant still receives ongoing treatment on a two to three week basis with respect to his mental health and requires medication. The Tribunal has also accepted that the applicant has been attacked in the past by members of the Taliban and that his aunt was killed by the Taliban. The Tribunal also accepts that he was witness to the aftermath of a terrorist bombing while living in Peshawar. The Tribunal notes that DFAT assesses that mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as Baba, Pir or Sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan.12 The Tribunal is mindful of DFAT’s assessment that Pashtuns are subject to ethnic stereotyping and the association of Pashtuns with Sunni militants and the Taliban which has led to official discrimination and ethnic profiling. Further, that the risk of official and/or societal discrimination and violence increases to something more than a low risk if they come to the attention of authorities for any reason in areas outside of Swat and surrounding areas.
The Tribunal accepts as reasonable that the applicant would find it difficult to access ongoing treatment and medication for his mental health in Karachi or anywhere else in Pakistan given the poor state of the medical system there. The Tribunal accepts that the applicant still experiences symptoms of PTSD and that returning to Pakistan without access to ongoing treatment will worsen his state of mental health. The Tribunal does not consider this to be a speculative conclusion given his continued and extensive history of mental health treatment. The Tribunal is satisfied that there is a risk that is not insubstantial that a Pashtun suffering from significant mental health issues in a large city such as Karachi, or anywhere else, will be subject to adverse racial stereotyping and may come to the adverse attention of the authorities. Given the country information set out above with respect to the practices of the Pakistan authorities with respect to extensive and egregious human rights abuses, the Tribunal is satisfied that there is currently a real chance of serious harm to the applicant anywhere in Pakistan for reason of his Pashtun ethnicity, due to this heightened risk presented by his poor state of mental health. As such, the Tribunal concludes that there is no area in Pakistan where the real chance of serious harm to the applicant does not exist.
There is also nothing before the Tribunal to indicate that the applicant has a right to enter and reside in any other country and the Tribunal finds this to be the case.
12 DFAT Country Information Report – Pakistan, 25 January 2022 p. 10
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan Member
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