2311786 (Refugee) - [2024] ARTA 61

DECISION AND
REASONS FOR DECISION
2311786 (Refugee) [2024] ARTA 61 (12 December 2024)
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2311786

Tribunal:General Member S Aster
Place:Melbourne
Date: 12 December 2024
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2024 at 2:51pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – fear of harm from Taliban – members staying in father’s guest house arrested after being reported by applicant’s uncle and cousin – uncle and cousin killed and applicant extorted – family’s relocation to village in Taliban-active area – political opinion – anti-Taliban and supporter of Pashtun nationalist party – party membership and activities in Australia – mental health and treatment – returned failed asylum seeker – credibility – no approach to police – returns to home country after international travel for work – no attempt to seek protection in other countries – no harm to family since applicant’s departure – authenticity of supporting documentation – very limited public profile – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AFD16 v MIBP [2020] FCA 964
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD18 v MHA [2020] FCAFC 2
MZXTT v MIAC [2008] FMCA 1007
1905564 (Refugee) [2024] AATA 1800
2304810 (Refugee) [2024] AATA 1417
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 5 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old man from Karachi, on the southern coast of Pakistan. He self-identified as of Pashtun (Yousafzai) ethnicity and Sunni Muslim faith. The applicant is married, with [children] aged [Ages] years old. His family live in the village of [Village], Swat Valley in Khyber Pakhtunkhwa, northern Pakistan.
The applicant worked as [an occupation 1] from [Year] until 2016 and has an extensive international travel history. He first applied for a Subclass 600 Tourist visa to visit Australia in 2015, however that application was refused. [In] February 2016, the applicant arrived at [Location 1] aboard [a mode of transport] on a [Specified] visa. On 26 February 2016, Australian Border Force were advised that the applicant and three other crew of the [transport] had deserted.
The applicant applied for protection on 30 March 2016, claiming that he would be targeted by Tehreek-e-Taliban if he returned to Pakistan. The delegate did not accept that the applicant or his family had been threatened or targeted by Tehreek-e-Taliban as claimed and refused to grant the visa.
On 6 February 2023, the then Administrative Appeals Tribunal (AAT) (differently constituted) affirmed the delegate’s decision. That decision was set aside by the Federal Circuit and Family Court because the AAT failed to consider a claim articulated by the applicant to fear harm as a member of the social group ‘returnees from Western countries to Swat Valley (or Karachi)’. The matter is now before the Administrative Review Tribunal pursuant to an order of the Court.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
The applicant provided the Department of Home Affairs with a statutory declaration dated 29 March 2016 and he was interviewed by the delegate on 23 October 2017. He provided the first Tribunal with two statements, dated 29 July 2022 and 6 December 2022. He appeared before that Tribunal on 19 September 2022 and 11 January 2023.
The claims put forward by the applicant throughout the application and review process can be summarised as follows:
a.The applicant lived with his father, mother, wife and children in a house owned by his father (a retired [occupation 1]) in Karachi.
b.In January 2012, the applicant allowed four members of Tehreek-e-Taliban Pakistan (TTP) to stay in a guest house owned by his father in a nearby area of Karachi. The individuals were known to the applicant’s family. The applicant claimed that members of the TTP relocated from Swat Valley following a military operation in the area.
c.The applicant said he felt compelled to allow the men to stay out of fear of retribution if he refused. He said they located the applicant in Karachi because he owned a shop and his father’s guest house was well-known.
d.The applicant’s uncle, [Mr A], and cousin, [Mr B], reported the location of the men to the authorities for the safety of the family and the community. In the early hours of the morning, the guest house was raided, and the four men were arrested.
e.The applicant’s uncle and cousin were high-profile members of the Awami National Party (ANP) at the time. The applicant claimed he was also a member of the ANP.
f.After the arrests, the authorities warned the applicant and his family that the TTP may seek to harm them.
g.The TTP demanded compensation for the arrest of its four members from the applicant’s uncle and cousin. On 21 March 2012, the applicant’s uncle [Mr A] was killed by the TTP. On 24 April 2012, the applicant’s cousin, [Mr B], was killed by the TTP.
h.In mid-2013, the TTP requested compensation from the applicant. A letter requesting a minimum 1,000,000 PKR (approximately $5,400 AUD) was thrown into his shop. The letter had blood on it and also said that the Taliban did not want to see a single remaining person of the applicant’s family alive. The applicant paid 1,000,000 PKR. He borrowed 300,000 PKR from a friend and paid the remaining from personal savings.
i.In around July 2014, the TTP demanded an additional 4,000,000 PKR. The applicant could not pay the sum requested. The applicant received death threats and stayed with friends in 2014 and 2015 to avoid harm.
j.The applicant and his father sold the house and shop in Karachi and moved the family to [Village] in Swat Valley district for their safety.
k.The applicant’s [occupation 1] record reports that he was aboard a ship (name illegible) from 4 May 2012 until 2 October 2012 and aboard [the transport] from 2 September 2013 until 26 June 2014 and again from 19 November 2015 until he arrived at [Location 1] [in] February 2016.
l.The applicant would be at risk of harm from extremist groups operating in Pakistan if he returned from a Western country as a failed asylum seeker.
In support of his claims, the applicant supplied the Department with:
a.Pakistan passport numbers [1] (expired) and [2] (current)
b.[Occupation 1]’s book
c.Pakistani [Occupation 1] Identity Document
d.Pakistani Driving Licence
e.Untranslated National Identity Card
f.Police Form No. 24-5(1), dated [March] 2012. The report was made in respect to a complaint made by [Mr C] about the death of his brother-in-law [Mr A]. [Mr C] said he was informed by [D] over the phone that [Mr A] was shot by unknown assailants at [Location 2]. [Mr A] was reported to be an ANP sympathiser.
g.Police Form No. 24-5(1) dated [April] 2012. The report was made in respect to a complaint made by [Mr E] about the death of his brother, [Mr B]. [Mr E] reported that his brother was shot and killed by an unknown assailant for an unknown reason between [Locations 3 and 4]. Two children were reported as injured in the incident. The report says that [Mr B] was a public servant at [Workplace] and was responsible for the Pashtun organisation of the Muttahida Qaumi Movement under Altaf Hussain.
The applicant produced the following documents to the first Tribunal in support of his claims:
a.A letter from [Mr F], [Official position] of the Awami National Party (Sindh), dated 5 July 2019. [Mr F] said that the applicant was an active member of the ANP and that [Mr A] and [Mr E] were targeted and killed by terrorists in Karachi. He also said that the applicant paid a ransom of fifty Lakh Rupees but then received threats to his life on the phone and through letters.
b.New translations of the police reports dated 22 March and 26 April 2012. There were no notable differences.
c.Translated report about the targeted killing of five people in Karachi, including the shooting of [Mr B] by unknown people. According to police, the victim was [an occupation 2] at [Workplace] and a member of the MQM Pakhtun Organising Committee. The article appears to have been published in [an] Urdu language paper. No citation was provided.
d.Translated report about the death of [Mr A]. It was reported that two unknown people opened fire and killed [Mr A] at [Location 5]. They escaped from the scene. The victim was a labourer who was originally from Swat. The article appears to have been published in [an Urdu language paper]. No citation was provided.
e.Translated affidavit by [Mr G], dated 10 October 2018. [Mr G] declared that the applicant lived in [Location 6], Karachi West, that he is from a respectable family and contributes to the community.
f.Death Certificate issued by the Government of Singh Pakistan for [Mr E] [in] April 2012. The ‘nature of death’ is recorded as normal and the ‘reason of death’ is reported as un-natural.
g.Translated affidavit by [Mr H], dated 8 July 2019, confirming that he loaned the applicant 300,000 PKR so that the applicant could pay terrorists who were threatening the applicant’s life.
h.Translated affidavit by [Mr I], dated 29 June 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life.
i.Translated affidavit by [Mr J], dated 20 June 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life.
j.Translated affidavit by [Mr K], dated 1 July 2019, declaring that the applicant stayed with him to hide from terrorists who were threatening his life.
k.A document named ‘various business receipts’ containing a range of untranslated receipts and pages of an exercise book.
l.The first page of a Sale Agreement between the applicant as vendor and [Mr L] as vendee for the sale of property in Karachi, dated 23 February 2016.
m.Translated Sales Agreement between the applicant as the seller and [Mr L] as the buyer for the sale of a property in [Location 6], Karachi for 40,000,000 PKR.
n.Mental health reports by [Mr M], Clinical Psychologist, dated 30 March 2021 and 17 March 2022. [Mr M] reported that the applicant meets the criteria for a major depressive disorder moderately severe in intensity, with accompanying moderately severe anxious distress, and moderately severe Post Traumatic Stress Disorder. Updates from [Mr M] were provided in a letter dated 27 November 2022 and email dated 2 December 2022.
o.Haleem Asad, ‘4 killed in gun attack on PTI MPA in Lower Dir’, Dawn, 7 August 2022. The article reports that a gun attack targeted the vehicle of a Pakistan Tehreek-i-Insaf official in Lower Dir.
p.Letter from [Ms N], Counsellor at [Organisation], dated 13 December 2022. [Ms N] provided a summary of the applicant’s referral to and engagement with [Organisation] House.
q.Two uncaptioned videos titled ‘footage of child discussing incident with Taliban’ and ‘footage of Taliban capturing officers and police in swat’.
r.Country information provided by the applicant’s representative, focused on the resurgence and activities of the Taliban in Khyber Pakhtunkhwa. The information will be discussed in the analysis and findings where relevant.
The Tribunal did not accept the authenticity of the police reports, the death certificate in respect to [Mr B], the letter from the ANP, the statutory declarations provided by the applicant’s friends or the contract of sale for the house in Karachi. The Tribunal found it unusual that the applicant’s father was never targeted by the Taliban as the owner of the guest house. It was noted that no evidence in respect to involvement with the ANP was put before the original decision maker. While no specific claims in respect to the ANP were raised, I note that the police report dated 22 March 2012 mentioned that [Mr A] was an ANP sympathiser.
The Tribunal highlighted the futility of moving the applicant’s family to the Swat Valley for their safety, if they were in fact well know to members of the Taliban.
Current review
On 9 August 2024, the Tribunal received submissions in advance of the scheduled hearing. The applicant’s representative provided an overview of the procedural history and claims put forward by the applicant. In summary, the specific issues for consideration were presented as the applicant’s:
a.Actual or imputed political opinion as a member and supporter of ANP
b.Membership of a particular social group, being:
i.Former/current anti-Taliban activist
ii.Former informant against the Taliban
iii.Returnee from Western countries to Swat Valley (or Karachi)
iv.Pashtuns in Karachi.
The Representative provided two recent examples of decisions made by the Tribunal which considered the risk to ANP supporters and Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa: 1905564 (Refugee) [2024] AATA 1800 (19 March 2024), 2304810 (Refugee) [2024] AATA 1417 (17 January 2024).
Annexed to the submissions was a new statutory declaration, made by the applicant on 8 August 2024. In addition to the claims outlined above, the applicant advised the current Tribunal that:
a.he was a supporter of the ANP in Pakistan and he is a member of the ANP in Australia and would be at risk of harm in Pakistan because of his actual or imputed political opinion.
b.He suffers poor mental health which would increase the risk of harm to the applicant in Pakistan.
In addition to material previously supplied and outlined above, the applicant supplied:
a.A summary of various reports about the security situation in Pakistan, the treatment of ANP supporters, the treatment of people perceived to be anti-Taliban, and the standard of mental health care in Pakistan. The information will be discussed in the analysis and findings where relevant.
b.A letter from General Practitioner, [Dr O] of [Medical Centre], dated 17 July 2024. [Dr O] outlined that the applicant has been a regular patient since 2020. [Dr O] outlined that he referred the applicant for psychological treatment and prescribed Lexapro. He expressed the opinion that returning to Pakistan would be detrimental to the applicant’s mental health and reuniting with his family in Australia would be beneficial.
c.A letter from [Ms N], Counsellor at [Organisation], dated 30 May 2024. [Ms N] advised that the applicant had an initial intake with [Organisation] in June 2022. She reported notable progress in his psychosocial wellbeing since he started treatment. Nevertheless, he remained symptomatic, which diminished his quality of life.
d.Evidence of his membership with ANP Australia.
e.Evidence that the applicant enquired about verifying the first information reports and death certificates provided by the applicant with [Forensics and Document Examinations providers] in July 2024. No opinions as to the authenticity of the documents was provided.
On 14 August 2024, the applicant supplied a letter from [Professor P] and [Dr Q] from the [Psychiatry Clinic] at [Health services provider]. [Professor P] holds a Bachelor of Medicine and Bachelor of Surgery, Master of Medicine in Psychiatry and Doctor of Philosophy. He is the [Academic positions] at [University]. [Professor P] works as a consultant psychiatrist for the [Psychiatry Clinic]. He has worked in the field of psychiatry for more than 25 years, with more than 15 years’ experience working with asylum seekers and refugees.
[Dr Q] is a General Practitioner with a Bachelor of Medicine and Bachelor of Surgery. He is a trainee on the [Health services provider] psychiatry fellowship program. He commenced working as the psychiatry registrar at the [Psychiatry Clinic] in February 2024.
The applicant was referred to the clinic by his General Practitioner in June 2023. He was reviewed by [Professor P] on four occasions and once by [Dr Q]. The letter provides the following diagnosis:
[The applicant] meets the criteria for major depressive disorder moderately severe in intensity with the specifier ‘with anxious distress,’ according to the Diagnostic Manual of Mental Disorder (DSM-5) 2013. He also meets the criteria for Post-Traumatic Stress Disorder.
The letter goes on to say that the applicant is being treated with medication and psychotherapy with a counsellor at [Organisation]. His symptoms are reported as anxiety, fatigue, poor concentration, memory issues and poor sleep. [Professor P] and [Dr Q] report that the symptoms may limit the applicant’s ability to effectively recall dates or accurate timelines. They also express the opinion that forcible removal, or facing an impending forcible removal to Pakistan, would likely cause significant deterioration of the applicant’s mental health. The applicant requires ongoing specialist psychiatric care.
The applicant first appeared before the Tribunal on 15 August 2024 to give evidence and present arguments. However, the hearing was adjourned to seek an alternative interpreter. On the day, the applicant advised that he was having difficulty understanding the dialect of the interpreter. He requested that the hearing be adjourned until such time as the Tribunal could secure a Pashto interpreter fluent in Pakistani Pashto.
The hearing resumed on 18 September 2024 with a Pashto interpreter fluent in Pakistani Pashto. The applicant confirmed that he was able to communicate effectively with the interpreter.
In light of the applicant’s mental health diagnosis, the applicant required an approach aligned with the recommendations outlined in the Tribunal’s Guidelines on Vulnerable Persons. At some stages through the hearing the applicant claimed he couldn’t remember certain things because of his mental health, which I have taken into consideration. A 15-minute break was taken part way through the hearing.
The applicant’s oral evidence will be discussed below where relevant. At the hearing, the applicant provided photographs of himself attending [an event], organised by ANP Australia.
On 25 September 2024, the applicant’s representative emailed an article to the Tribunal with the message, ‘please find attached country information in support of the applicant’s claims.’ The article, by Mushtaq Yusufzai and Andrew Jones, is titled ‘Attack on foreign diplomats’ convoy in Pakistan kills police officer, police say.’ No citation was provided, but the article appears to have been published by NBC News on 23 September 2024.

The article reports on the death of a police officer when a roadside bomb hit a convoy of foreign diplomats visiting the Swat valley area on the invitation of the local chamber of commerce to showcase it as a potential tourist destination. It was reported that the ambassadors remained safe and had been transported out of the area.
On 3 October 2024, the applicant’s representative emailed three additional articles.[1] Two articles were about the death of police officers and the killing of suspected militants by police in altercations in Swat, the second was about the death of the police officer in the same incident involving foreign diplomats reported above. No analysis of the articles or how they relate to the circumstances of the applicant was provided. I infer the articles were provided as commentary on the general security situation in the Swat district.
[1] Shahabuddin, S, ‘Two attackers killed, as many cops injured as Swat police team ambushed,’ Pakistan Today, 25 September 2024; Khaliq, F, ‘Cop martyred as diplomatic convoy comes under attack in Swat,’ Dawn, 23 September 2024; Khaliq, F, ‘3 suspected militants killed I Swat, Lakki,’ Dawn, 26 September 2024.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
ANALYSIS AND FINDINGS
The applicant was born in Karachi, where he lived until travelling to Australia in 2016. The applicant said his parents moved to Karachi from Swat in [Year]. The family also owned a house in [Village], Swat District, Khyber Pakhtunkhwa Province of Pakistan. They would visit the area and stay in the house from time to time. His father, mother, wife and children permanently moved into the house in Swat in 2016.
The applicant is of Pashtu ethnicity and Sunni Muslim faith. He speaks Pashto, Urdu and some English. The applicant said he can read Urdu but cannot read Pashto or English. Between 2005 and 2016, the applicant worked as [an occupation 1], based out of Karachi. At the time of the Tribunal hearing, he was employed as [an occupation 3] on [workplace] s.
I accept that the applicant and his father owned and operated a general store in Karachi West between [Year] and 2015 and the family had a guest house.
Tehreek-e-Taliban Pakistan formed in 2007. The Department of Foreign Affairs and Trade (DFAT) reports that its short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia law and an Islamic caliphate.[2] As Pashtuns from Swat Valley, I accept that the applicant and his family may have had friends or acquaintances that supported or actively joined the TTP, especially in the early period before the military crackdown and rise in terror activity. I accept that the applicant’s family allowed members of the TTP from Swat to stay in the guest house they owned in 2012. However, for the following reasons, I do not accept that the family reported them to the police, that the TTP killed the applicant’s uncle or cousin, threatened, targeted or extorted the applicant:
[2] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 25 January 2022.
a.The claimed incident with the TTP Members took place in January 2012. The applicant’s uncle and cousin were allegedly killed in retaliation in March and April the same year. The applicant remained in Karachi until [May] 2012, when he departed to undertake a job as [an occupation 1]. The applicant returned to Karachi for almost 12 months between [October] 2012 and [September] 2013 and again for 17 months from [June] 2014 until [November] 2015. The applicant gave evidence that he stayed with friends to avoid detection. Nevertheless, he spent more than two years physically located in Karachi after the TTP stayed in the guest house and he was not located or harmed.
b.The applicant stopped at [Location 7], [Country 1], [in] September 2012. He travelled to [Location 8] in [Country 2] in September 2013 and from [Location 9] in [Country 3] in June 2014. He did not attempt to remain in [Countries 1-3]. This is not indicative behaviour of someone who fears for their safety and life. When asked why, the applicant said he had a good job and didn’t want to quit. He thought if he paid the ransom to the TTP he would be spared. The applicant’s representative highlighted that [Countries 2 and 3] are not signatories to the 1951 Convention relating to the Status of Refugees. While that may be the case, [Country 1] is a signatory to both the convention and protocol and there are other avenues through which people can seek to remain abroad. By way of example, in 2019, approximately [Percentage] of [Country 2]’s total population consisted of immigrants, including [Percentage]% of the population originating from Pakistan.[3]
c.When questioned as to why he did not go to the police about the alleged threats from the TTP, the applicant said that the police would not accept a report against unknown individuals. However, police reports were provided for the alleged shooting of the applicant’s uncle and cousin by unknown people. This inconsistency is not easily reconciled.
d.Although the applicant provided police reports in respect to the deaths of his uncle and cousin, in both cases the assailants were listed as unknown. This was also the case in the Urdu language news reports. No evidence was put forward as to whether the police accepted the accuracy of the reports, investigated the deaths or determined that the TTP were responsible.
e.News articles were located by the applicant and supplied to the Tribunal in respect to the deaths of his uncle and cousin as a result of unknown assailants. However, no articles were submitted about the arrest of four members of the TTP in Karachi.
f.The applicant claimed to have received a letter in mid-2013, which made threats against his family. He gave evidence that his family moved to Swat in 2016 for their safety. However, the applicant’s family have not been harmed in the twelve years since the incident with the TTP. In response to this information, the applicant claimed the TTP would not target women, children or the elderly. This evidence is not consistent with published information in respect to the activities of the TTP and it is not consistent with the applicant’s earlier claim to fear that the TTP would harm his family.[4]
g.Swat Valley is where the members of the TTP who stayed in the guest house originated. It is where their families allegedly lived and where the TTP have been most active. Moving his family from Karachi to Swat Valley for their safety does not seem to be a practical solution to safety concerns in the circumstances.
h.As the owner of the guest house, it is unclear why the applicant’s father was never targeted or threatened by the TTP, particularly when his brother was allegedly killed as a result of the incident.
[3] Central Intelligence Agency, The World Factbook, [Country 2], last updated 1 October 2024, accessed at 2].
[4] For example, the attempted assassination of prominent female education advocate Malala Yousafzai in 2012 (DFAT, ibid 2); the attack on a school van in October 2022 (Fazl-E-Haider, S, ‘Enemies of education are back in Malala’s hometown?,’ The Interpreter, 14 October 2022, accessed at >
I acknowledge that the applicant provided affidavits from friends who said they loaned him money or provided a place to stay and a letter from the [Official position] of the Awami National Party (Sindh) in support of his claims. I do not consider that the letters of support outweigh the concerns expressed above.
In summary, the applicant spent more than two years physically located in Karachi after the TTP stayed in the guest house without being located or harmed. He travelled abroad and voluntarily returned to Karachi on two occasions. The applicant claimed to have received a threatening letter that said the Taliban wanted his whole family dead, yet his family have been in Pakistan for 12 years without being killed. The police reports and news articles relating to the deaths of the applicant’s uncle and cousin did not refer to the TTP and there was no official documentation or media coverage provided to indicate that the TTP were found responsible.
I do not accept that the applicant was threatened, extorted or targeted by the TTP in the past. I do not accept that the applicant would be personally known to the TTP or that the group would seek to threaten, extort or target him in the future because some members stayed in his family guest house in 2012.
Fear of harm from Tehreek-e-Taliban
Having found that the applicant was not personally threatened, targeted, or extorted by the TTP in the past, or that he would be targeted in the future because of a past action, I have assessed the general risk of harm from the TTP, including whether the applicant would face an increased risk of harm as a Pashtun or member of the ANP.
At the hearing, the applicant described the ANP as a party that helps Pashtuns. He said the ANP has a senator in Parliament in Pakistan; he speaks out against the army and the Taliban and advocates for royalties to be paid to Pashtuns for the natural resources taken from Khyber Pakhtunkhwa. The applicant described his duties within the ANP when he was in Pakistan as those of a worker. He would display posters, prepare venues before meetings, help with security, and try to convince people to vote ANP in an election. The applicant contrasted his tasks to those of a high-profile member who would address people at meetings, lead election campaigns and hold official positions.
The applicant said that he discovered there was a branch of the ANP in Australia and joined. He said the Australian organisation was formed in 2021. I accept that the applicant would be a member of the ANP if he returned to Pakistan, vote for the ANP and participate in events organised by the party, such as the commemorative event attended in Australia.
In the submissions of 9 August 2024, the applicant claimed he would be at risk of harm as an anti-Taliban activist. At the hearing, I asked the applicant what activist activities he was involved in organising or participating in. In response, the applicant spoke about the ideology of the ANP. He said the ANP is against the policies of the Taliban. The party don’t believe in placing restrictions on women or forcing men to shave. The applicant said these measures are not the true essence of Islam. He said the TTP do not want peace and the impose rules on people. The applicant provided no specific examples of activism he had or would engage in. I accept that the ANP supports a different interpretation of Islam than the TTP and that the applicant supports the ANP. Other than his membership of the ANP and associated activities, which have been accepted, I do not accept that the applicant is an anti-Taliban activist or that he would be imputed to be.
In the submissions of 9 August 2024, the applicant’s representative provided extracts from some reports and articles. In respect to Taliban activity, the material primarily focused on Swat valley:
a.An extract from the US Department of State 2021 Country Report on Human Rights Practices: Pakistan highlighted that there were numerous reports of attacks against police and security forces across Pakistan. Examples of the death of a Swat District antiterrorism court judge, police officers and soldiers were provided. In August and September of 2020, it was reported that there was an increase in attacks on police in Khyber Pakhtunkhwa with the TTP claiming responsibility for most.
b.A 2022 Al Jazeera article reported on the death of peace committee leader Idrees Khan and four others in a bomb blast near Kot Katai village in Swat. The attack was described as the first major bombing in more than a decade in Swat. It was reported that fears about the return of the TTP to the Swat area were rising.[5]
c.A 2022 TRT World report on the security situation in Swat. It was reported that there were increased sightings of armed TTP in the area and a lack of support for the Talib within the community.[6]
d.Background on the conflict and actors in Khyber Pakhtunkhwa provided in a 2024 Country of Origin Information Report on the security situation in Pakistan, published by the Belgium Office of the Commissioner General for Refugees and Stateless Persons.[7] The passage included a table of yearly fatalities using data from the Southy Asia Terrorism Portal (SATP), which will be discussed further below.
e.A short passage from the US Department of State Country Report on Terrorism 2022 which reports on an increased rate of attacks perpetrated by the TTP in Khyber Pakhtunkhwa since the Taliban takeover in Afghanistan in 2021, most of which targeted Pakistani security forces.[8]
f.Extracts from articles reporting that the Taliban takeover in Afghanistan has emboldened the TTP in Pakistan.[9]
g.Extract from the Department of Foreign Affairs and Trade Country Information Report, 25 January 2022. The submissions highlighted that “TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2022. These attacks have occurred mostly in Khyber Pakhtunkhwa…”
h.An extract from the Pak Institute for Peace Studies (PIPS), Pakistan Security Report 2023. The report highlighted that Khyber Pakhtunkhwa faced the highest number of attacks for any one region of Pakistan in 2023. PIPS recorded a total of 174 terrorist attacks in the province, which claimed 422 lives and injured 782 others [10]
i.An extract from the Global Terrorism Index 2022, reporting that the impact of terrorism had increased slightly in Pakistan. There were a reported 186 terror related incidents in 2021.[11]
j.Centre for Research and Security Studies data reporting that the ANP suffered 96 casualties from terror attacks and violence in 2013, 17 in 2014, 7 in 2015, 6 in 2016, 2 in 2017 and 24 in 2018.[12]
k.A 2018 Al Jazeera article about a suicide attack at an ANP campaign event in Peshawar that killed at least 20 people and wounded at least 69.[13]
[5] Al Jazeera, ‘Anti-Taliban tribal leader among 5 killed in Pakistan bombing,’ 13 September 2022.
[6] Ajmal, U, ‘Fear and despair grip Pakistan’s Swat as TTP foothold increases,’ TRT World, 14 August 2022.
[7] CECOCA, Country of Origin Focus Pakistan: Security situation, 25 June 2024, accessed at US Department of State, Country Report on Terrorism 2022: Pakistan.
[9] Abdul Sayed and Tore Hamming, ‘The Tehrik-i-Taliban Pakistan After the Taliban’s Afghanistan Takeover’ (2003) 16(5) CTC Sentinel, 1-10; Asfandyar Mir, ‘Pakistan’s Twin Taliban Problem’ United States Institute of Peace (Online, 04 May 2022)
[10] Pak Institute for Peace Studies, Pakistan Security Report, 3 January 2024.
[11] Institute for Economics & Peace, Global Terrorism Index 2022, March 2022, accessed at Centre for Research and Security Studies, CRSS Annual Security Report: Special Edition 2013 – 2018, accessed at Al Jazeera, ‘Suicide blast kills ANP candidate, supporters at election rally,’ 11 July 2018, accessed at:
The submissions of 9 August 2024 also included some information about the treatment of ANP supports. It was highlighted that DFAT reports Pashtuns involved with the ANP face specific, heightened risks. The ANP is anti-Taliban and TTP militants have attacked ANP members. DFAT assesses ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The 2023 US Department of State report outlined that:
The PTM and secular Pashtun political leaders claimed Pashtuns were targeted and killed by both antistate militants and security forces because of their political affiliation or beliefs, antimilitancy stance, or criticism of the government. PTM leaders and activists claimed they had been threatened, illegally detained, imprisoned without trial, banned from domestic and international travel, and censored. Anti-Taliban Pashtun activists and political leaders were targeted and killed, allegedly by militants, in Sindh, Balochistan and KP. Pashtuns from the former FATA complained they were frequently profiled as militants, based on their tribe, dress, appearance, or ancestral district of origin. Pashtun activists claimed that they were subject to military censorship and that sedition laws were used to stifle PTM and other Pashtun critics of the government.

DFAT reports that terrorist attacks increased in 2021, following a six-year downward trend. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. The reported fatalities were very low (293) as a proportion of the population (0.0001%). The report went on to say that since Noor Wali Mehsud assumed leadership in 2020, Tehreek-e-Taliban Pakistan has moved away from targeting civilians to focus on Pakistani military and other government representatives. DFAT reports that the targeting of civilians was undermining popular support. Other experts also noted that by the spring of 2021, the Taliban’s relatively new Emir had implemented very significant changes in the Taliban’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.[14] Those targeted are policemen, prominent personalities, tribal elders, and religious leaders according to one think tank that monitors Taliban attacks in Pakistan.[15]
[14] Pakistan Institute for Conflict and Security Studies, Pakistan’s Comprehensive National Security Profile 2023, accessed at >
More recent media reports that the Afghan Taliban have failed to recognise the Durand Line as a settled border between Afghanistan and Pakistan.[16] The TTP in conjunction with more than 30 local factions within Swat and Waziristan, under the leadership of Noor Wali Mehsud, have intensified attacks along the nearly 2,600km border. This has primarily affected Balochistan and Khyber Pakhtunkhwa provinces.
[16] Kugelman, M, 'Tensions Escalate on Pakistan-Afghanistan Border', Foreign Policy, 20 March 2024, Hussain, A, ‘’Cousins at war’: Pakistan-Afghan ties strained after cross-border attacks', Aljazeera, 19 March 2024; Shams, S, 'Is Pakistan at war with the Afghan Taliban?', Deutsche Welle, 20 March 2024.
In addition to the data outlined above, the PIPS report referenced by the applicant outlined that in 2023 Karachi had 14 terror attacks resulting in 16 killed and 26 injured. The applicant referenced the Global Terrorism Index 2022. The more recent Global Terrorism Index 2024 reported a total of 689 terrorism deaths and 1,173 injured in Pakistan in 2023.[17] Reports on attacks against ANP figures in Khyber Pakhtunkhwa indicated that in 2023 there was one ANP leader who was killed.[18] In 2022 two political figures were killed: one in North Waziristan and the other in Bajaur districts.[19]
[17] Institute for Economics & Peace, Global Terrorism Index 2024: Measuring the Impact of Terrorism, Sydney, February 2024. Accessed at: >
While the exact numbers of deaths and injuries because of targeted killings and terror attacks differs between sources, each set of data shows that the number is small as proportion of the total population. The articles and reports indicate that targeting killings and terrorist activity does occur in Khyber Pakhtunkhwa, and that the TTP have been more active in Pakistan since the Taliban took control of Afghanistan. I accept this to be true.
However, the articles and reports also indicate that militants operating in the area primarily target police, security forces and high-profile objectors. The total number of deaths and injuries is incredibly low as a percentage of the population. This number is smaller again in Karachi. While I acknowledge that DFAT reports ANP members face a moderate risk of violence overall, it is important to note what is meant by moderate risk. The DFAT report notes that the term moderate risk is used when ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour’. When considering the risk to the applicant personally, I have considered his individual profile and the location in which he would be living.
I do not accept that the applicant was known to Taliban operatives in the past. His future activities with the ANP will carry a very limited public profile. There are an estimated 20-25 million Pashtuns in Pakistan and the largest Pashtun community in the world lives in Karachi.[20] The applicant himself gave evidence that most Pashtuns support the ANP. As discussed with the applicant at the hearing, the data outlined above suggests it would be safe for him to live in Karachi. The applicant lived in Karachi before he came to Australia and for most of his life. It is reasonable to expect that he could again live in Karachi if he returned to Pakistan. While the applicant’s family now live in Swat, I do not accept that this would prevent him living in Karachi. He has lived in Australia without seeing his family for more than eight years and regularly lived away from his family while working as [an occupation 1].
[20] DFAT, above n 2.
When considering the size of the ANP movement, the large population of Pashtuns in Karachi, the type and target of TTP attacks, the applicant’s low profile and limited future activities, I find that the applicant faces a very low level of risk, such that it would be remote. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the TTP.
Fear of harm as a returnee from Australia and failed asylum seeker
I accept that the applicant has lived outside Pakistan since 2016. He departed Pakistan using valid travel documents and has an extensive international travel history. At the date of the Tribunal hearing, the applicant held a current passport.
DFAT reports that people who return to Pakistan voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who return involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours.
There is no evidence to suggest that the applicant has committed a crime in Pakistan or Australia. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely because of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad. In this case, the applicant is a man, a member of the second largest ethnic group as a Pashtun and the religious majority as a Sunni Muslim. As discussed with the applicant at the the hearing, this indicates that his risk of societal and official discrimination and violence is low, even as a returnee from the West.
I do not accept that the applicant would face a real chance or risk of serious or significant harm as a returnee from Australia or failed asylum seeker.
Mental health
I accept that the applicant has been diagnosed with major depressive disorder moderately severe in intensity, with accompanying moderately severe anxious distress, and moderately severe Post Traumatic Stress Disorder. I accept that he would prefer to remain in Australia and his mental health may deteriorate if he were forcibly removed to Pakistan.
The overall standard and availability of healthcare in Pakistan is low. DFAT reports that mental health disorders in Pakistan are common and options for treatment are limited. More than 90 per cent of people with common mental health disorders go untreated.[21] According to a 2023 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of more than 230 million. There are four major psychiatric hospitals and other private mental health facilities.[22]
[21] DFAT, above n 2.
[22] Hassan, W, ‘Mandatory mental health education in Pakistan: a proposal,’ The Lancet, v10, i5, May 2023., p 318-319.
I understand that the applicant would benefit from ongoing therapy and access to medication used for the treatment and management of his mental health. While I accept that the level of health care in Australia may lead to better mental health outcome for the applicant when compared to the health care available in Pakistan, I do not accept that he would be denied medical treatment for any discriminatory reason, or that the state would withhold protection from non-state agents of harm because the applicant has poor mental health.
I note that the applicant gave evidence that he would be more susceptible to being located and targeted by the TTP because of his poor mental health if he returned to Pakistan. However, as outlined above, I do not accept that he would be of adverse interest to the TTP in the reasonably foreseeable future. I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for reason of his mental health.
Several Federal Court authorities have confirmed that the definition of ‘significant harm’ in s 36(2A) is framed in terms of harm suffered because of the acts or omissions of other persons, and therefore does not encompass self-harm and harm arising from a mental illness.[23] Any harm the applicant would suffer as a result of mental illness would not be harm that is suffered as a result of the act on another person. As discussed with the applicant at the hearing, there is no intention on behalf of society or the medical profession to cause him harm. He would have the same access to health care as any other citizen. For this reason, I also find that the applicant’s mental health does not constitute significant harm for the purposes of complementary protection.
[23] GLD18 v MHA [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; and CSV15 v MIBP [2018] FCA 699.
The Tribunal is the finder of fact and is not bound to accept the opinions of a medical practitioner as to the truth of the applicant’s claims for the visa.[24] Acceptance of an opinion does not entail acceptance of an applicant’s claims to fear harm.[25] In this case, I accept that the applicant suffers from poor mental health. I have taken this into consideration when assessing his evidence and claims for protection. I have allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature of a question and the way it is asked. I do not accept that any of these factors explain or excuse the concerns which led me to find that the applicant is not a person towards whom Australia has protection obligations.
[24] MZXTT v MIAC [2008] FMCA 1007 at [37]-[41].
[25] See for example AFD16 v MIBP [2020] FCA 964 at [71].
Having considered what I have accepted of the applicant’s claims cumulatively, I do not accept that his profile as a member of the ANP, a person who spent time abroad, returning as a failed asylum seeker or poor mental health would give rise to a real chance or risk of serious or significant harm.
I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason claimed or arising on the evidence if he were returned to Pakistan. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm: s.36(2)(aa).
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 15 August 2024, 18 September 2024
Representative for the Applicant: Mr James Wardlaw

Maizland, L, ‘The Taliban in Afghanistan’, Council on Foreign Relations, 19 January 2023.

Actions

Download as PDF Download as Word Document

Citations

2311786 (Refugee) [2024] ARTA 61

Cases Citing This Decision

Cases Cited

Statutory Material Cited

1905564 (Refugee) [2024] AATA 1800

2304810 (Refugee) [2024] AATA 1417

GLD18 v Minister for Home Affairs [2020] FCAFC 2