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1826835 (Refugee) [2023] AATA 3792 (4 September 2023)

Last Updated: 21 November 2023

1826835 (Refugee) [2023] AATA 3792 (4 September 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Ms Carina Ford (MARN: 9802862)

CASE NUMBER: 1826835 & 2212665

COUNTRY OF REFERENCE: Pakistan

MEMBER: Peter Vlahos

DATE: 4 September 2023

PLACE OF DECISION: Melbourne

DECISION IN 1826835 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a). of the Migration Act.

DECISION IN 2212665 The Tribunal sets aside the decision to refuse the Protection visa application and substitutes it with a decision the Protection visa application was invalid.

This Statement was made on 4th September 2023 at 9.00AM.

CATCHWORDS

REFUGEE – protection visa – Pakistan – race – Pashtun – imputed political opinion – work for foreign employer – particular social group – people associated with the West – business owners – attacks by the Taliban – physical assault – fear of detention – physical and mental health conditions – reasonable internal relocation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 46, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP [2018] FCAFC 178; (2018) 260 FCR 447
Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIIhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437


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 dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
  2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 11 August 2016. The delegate refused to grant the visa on the basis that the application did not meet the requirements of s.36(2) of the Act.
  3. According to Departmental records[1], the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. Following the Federal Court judgement in DBB16 v MIBP [2018] FCAFC 178; (2018) 260 FCR 447, the applicant was not an ‘unauthorised maritime arrival’ (as was defined in s.5AA of the Migration Act 1958 (Cth) (‘the Act’) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s.5(1)) and subsequent decision to refuse to grant the applicant a Safe Haven Enterprise visa is not a ‘fast track decision’ (as defined in s.5(1)). Instead, it is a Part 7- reviewable decision able to be reviewed by the Migration and Refugee Division under s.411.
  4. The applicant was previously granted a Temporary Safe Haven (Subclass 499 -Humanitarian Stay (Temporary) visa on 28 May 2013 by the Department, the effect of which was thought to trigger a statutory bar against the making of other types of visa applications in Australia under s.91K of the Act because the applicant was considered to be an unauthorised maritime arrival at that time. However, following the Full Federal Court judgement in MICMSMA v CBW20 [2021] FCAFC 63, the s.91K bar does not apply to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s.91K bar and the applicant made a valid application for review on 11 August 2016.
  5. The applicant appeared before the Tribunal on 5 July 2023 to give evidence and present arguments. The Tribunal received no oral evidence from witnesses on the applicant’s behalf.
  6. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
  7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

CRITERIA FOR A PROTECTION VISA

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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

  1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The issue in this case is whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Country of origin, nationality and identity of applicant considered

  1. The Tribunal noted from the Department’s records that the applicant had submitted the following documentary evidence of his identity, nationality or citizenship:
  2. There is no evidence before the Tribunal indicating that these documents as submitted are ‘bogus documents’ as defined in s.5(1) of the Act.
  3. For the reasons provided above, and for the purposes of this review, the Tribunal finds that the applicant’s identity is as claimed. The Tribunal further concludes and finds that the applicant has complied with sub-section 91W of the Act and that sub-section 91WA of the Act does not apply.
  4. Therefore, the Tribunal is satisfied with the applicant’s identity and accepts that he is a Pakistani citizen and a Sunni Pashtun male born on [date].
  5. The Tribunal has reviewed all recorded assessments of the applicant’s identity as recorded by the Department and the Tribunal is satisfied that the applicant has provided satisfactory documentary evidence of his identity, nationality and citizenship. For the reasons provided above, and for the purpose of this review application, the Tribunal accepts the applicant’s identity is (as he names himself) with birthday being – [date] and that his country of origin is Pakistan.

Protection in another country considered

  1. The Tribunal having reviewed and considered all information before it also concludes and finds that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than his home country – Pakistan. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant in this case.

The Applicant’s migration and visa history

  1. The applicants migration and visa history is recorded as follows:[4]
[April 2013]
Arrived in Australia
25/05/2013
Attended arrival interview9
28/05/2013
Released from detention after being granted Humanitarian Stay (class UJ, subclass 499) visa and Bridging E (class WE, subclass 050) visa
01/12/2015
s46A bar lifted for purpose of TPV and SHEV only
11/08/2016
The applicant lodged a TPV visa application10
14/06/2017
TPV application refused11
20/06/2017
IAA review of the TPV refusal commenced.
08/03/2018
IAA confirmed the TVP refusal decision12
[April 2018]
Judicial Review Commenced - FCC VIC - [File number]
[September 2018]
Judicial Review Result - Minister Loss - FCC VIC - [File number]
[Later in September 2018]
Judicial Review Commenced – Ministerial appeal - FFC VIC - [File number]
[November 2018]
Judicial Review Result - Minister Withdraw - FFC VIC - [File number]
18/02/2019
Re-notification of refusal of application for a TPV13
01/03/2019
Review of TPV refusal commenced at Administrative Appeals Tribunal (AAT) – ongoing.
14/08/2020
The applicant was notified of invalid application for TPV as he was affected by the DDB16 judgement14
28/08/2020
The applicant notified of the Minister intervening and lifting the s91K bar and s48A bar.15
17/09/2020
The applicant lodged a valid SHEV visa application.16
09/05/2022
SHEV interview17

The Applicant’s claims for Protection

  1. The applicant’s claims for protection and supporting evidence are contained in the Department’s files [numbered]. The claims for protection are summarised as follows:

Claims made at the Entry interview

On 25 May 2013, the applicant attended an entry interview with a departmental officer to discuss the reasons for his travel to Australia. The following is a summary of claims made in his entry interview:

Claims made in the Applicant’s 2016 TPV application

2020 SHEV application

  1. The applicant stated that in his current application, he relied on the claims made in his previous statutory declaration, which was provided with the 2016 TPV application, dated 7 August 2016.[5] In support of his claims, the applicant provided general country information related to Pashtuns, the Pashtun Tahafuz Movement (PTM), and the TTP activity in Lower Kurram.[6]
  2. On 17 September 2019, the applicant provided a statutory declaration that reiterated that his date of birth was [date]. It also reiterated that the applicant witnessed how [Mr A], a fellow shop owner, was hung and shot by the Taliban at the main square of [Town 1].[7]
  3. On 4 May 2022, the applicant provided a statement in which he reiterated his previous claims. In addition, he advised that [in] February 2022, he was involved in a traffic accident. He stated he had been suffering from memory loss, flashbacks, night terrors, left shoulder pain and lower back pain, for which he was undergoing investigation and treatment. He stated he feared that he would not have access to adequate medical treatment should he return to Pakistan.[8]
  4. On 6 May 2020, the applicant’s legal representative provided a pre-interview submission that reiterated the applicant’s claims and supported them with general country information related to the activity of the TTP in Pakistan, Pakistani healthcare, Pashtuns and PTM and the DFAT report.[9]
  5. At the SHEV Interview on 9 May 2022 which was conducted by the Department with the assistance of Pashto language interpreter, the applicant reiterated his claims made throughout his dealing with the Department during the TPV/SHEV application process and provided some additional information as follows:

  1. The Tribunal also noted from the Department’s file that post-interview submissions were made. On 17 May 2022 the applicant’s legal representative provided further information related to the applicant’s health condition and treatment following a motor vehicle accident in February 2022.[10] The documents confirm that the applicant required further ongoing physiotherapy for physical injuries and psychological assessment and counselling for Post-Traumatic Stress Disorder (PTSD) and other symptoms related to the applicant’s accident.
  2. Further psychological counselling it was advised was to commence in July 2022.

EVIDENCE AT THE HEARING

Background – Personal

  1. The applicant is [an age]-year-old male citizen of Pakistan, a Sunni Muslim of Pashtun ethnicity from [Village 1], Kurram Agency. All relatives are also living in the village. The applicant is married and has [specified family members]. The applicant told the Tribunal that his father’s brother’s son, who is the applicant’s eldest cousin, claimed two of the applicant’s daughters at birth and took custody of them ‘on or about [year range]’ when the applicant’s daughters were very young, who since, live in household. The applicant said that his cousin took his two daughters because as he explained (also in his written statement) he – the cousin said that was required – him being the applicant’s eldest cousin. The applicant said that he had no choice but ‘to give [my] daughters to his cousin’ but ‘he did [not agree] for them to marry him or his sons.’ The applicant explained that this traditional practice was described as ‘Ghagh’ which was (according to the applicant) – ‘a claim made on his daughters’ – a claim the applicant did not agree with and wished that his daughters – one day – become reunited with the family.
  2. The applicant said that he has (currently) [number] children who are residing with his wife in [Village 1] village, Pakistan. One of the applicant’s sons is [age]-years-of-age and was studying in university but stopped his studies and is currently studying English and ‘some other studies’ in [Village 1]. [Specified children] still at school. [One child] that is [age]-years-of-age is [at a] college. The children, the applicant said have no contact with the sisters that have lived within his cousin’s household. The applicant said that he and his family hoped that the family will be reunited “one day”.
  3. While in Australia, the applicant said that ‘he used to [work] for [an employer]’ but has not been employed because of a motor vehicle accident. The applicant said that he was receiving TAC payments of approximately $883.00 per fortnight. The applicant suffers from a ‘constant burning pain in his lower back’ ‘left side’ of his neck and shoulder, and ‘right leg’ and this causes him ‘difficulties to sit still for long periods of time’ and the prescribed medications he takes for his physical and mental illnesses cause him ‘to suffer side-effects’ that restrict his ability to do work.
  4. The applicant said that he has been ‘away from his wife and children for 10 years’ since he arrived by boat in Australia in 2013. The applicant said that he calls and speaks to his family ‘about once a fortnight’ by phone or WhatsApp.

The reasons the Applicant left Pakistan.

  1. The applicant said that his spouse was ‘in danger’ in Pakistan from the Taliban and the authorities and the applicant ‘cannot return’ to Pakistan. The applicant said that his family are ‘living in [Village 1]’ ‘which is still under [the] threat of violence from terrorist groups’, ‘violence between Sunni and Shi’a’ and from the ‘Pakistan Taliban.’
  2. The applicant told the Tribunal that he was as he described his circumstances “on the Taliban hit list”. The applicant said that he was a Taliban target because he had “worked for a foreign organisation” which undertook local commercial work and interests – as [an occupation 1].
  3. The applicant said that he worked for this ‘foreign company’ for approximately ‘one year’ and thereafter, he worked for a local NGO ‘for one year.’
  4. The applicant was asked to explain – how he came to the attention of the local Taliban? The applicant explained that while he was working with the foreign company and NGO, he also ran a family business ‘shelling [products 1]’ and other good locally – between the years 2005 to 2010.
  5. The Tribunal was told that though the business was successful for a period of time – as the local Taliban consolidated its presence in the area – the Taliban’s disapproval of such business selling as they did [products 1] attracted the Taliban’s disapproval and the business suffered and eventually was abandoned. Moreover, the applicant (at that time) became fearful for his life because another such business owner had been executed, according to the applicant’s recollection by the Taliban when he refused to cease trading in such products.
  6. The applicant could not recall exactly when this public execution of fellow shop owner occurred, but the applicant believed ‘it was some time in 2010’ but he admitted that he was not sure or that he had witnessed such an execution. However, having learnt of such local reprisals by the Taliban locally, was enough according to the applicant, for him to fear the worse for himself if he continued to run such a business.

Work as [an occupation 1] for the company [Business 1]

  1. Therefore, according to the applicant – he searched for an alternative employment and that was to work as [an occupation 1] for the foreign company known as [Business 1] and for the NGO, [Business 2] – also as [an occupation 1].[11]
  2. The applicant said that the Taliban had “seen me” with a “western-person” and “saw that he was working with westerners”. The applicant described his duties as ‘[an occupation 1]’ and that was he was “[assisting] the boss of the company” who (according to the applicant) “was a [Country 3] national.”
  3. The applicant said that the local Taliban having ‘seen him’ working for westerners’ sent “a letter” to his father warning him to stop his work. Overtime, the Pakistani armed forces moved into the region to secure it from terrorist insurgents and the situation improved for a while (according to the applicant) and about that time he too, ceased working for the company – [Business 1].

[Occupation 1] for the [Business 2] – local NGO

  1. In his evidence to the Tribunal the applicant said that as [an occupation 1] for [Business 2] his main responsibility was supplying food and tins of food to ‘victims of war.’ The Tribunal noted the ‘letter’ entitled ‘Experience Certificate’, which records the applicant’s work with [Business 2] between July 2012 and February 2013.[12]
  2. The Tribunal also noted the evidence material submitted which consisted of Minutes produced in 2013 by [Agency 1], Pakistan - a global [support] organisation established in 2010 and working directly with partners including NGOs, the Red Crescent and UN organisations – and indicates that [Business 2] operated in the provision of food distribution to internally displaced persons in the KPK and FATA region as well in other regions within Pakistan. The Tribunal noted that the Report for February 2013 submitted, concerning the organisation’s humanitarian operation plan in KP/FATA area recorded [number] hubs and [distribution] points were in operation for food distribution and [community] programs inclusive of the [Business 2] assisted in food distribution.[13] It was further pointed out that sources indicated the work of the organisation ([Agency 1]) from 2012 have also been sourced to support the operation of [Business 2] as an agency engaged in related [relief] operations in the KPK region in Pakistan at the time the applicant’s employment.[14]
  3. The applicant also told the Tribunal that the Taliban “stole and misused” his motor vehicle and told the Tribunal that it was found by the military “full of weapons” and the applicant feared that he would not be believed by the Pakistan authorities that he was “not involved with the local Taliban” and would be considered “a supplier of weapons” to the Taliban.
  4. The applicant was asked to explain to the Tribunal – how his motor vehicle was seized by the local Taliban. The applicant said that one day (he did not indicate a particular timeline) the Taliban came to his father’s home (where the applicant also resided), “assaulted his (now late) father” and “took the car”. The applicant said that “later on” the motor vehicle was found “with weapons”. The local authorities came to the applicant’s father and requested that the applicant present himself to the authorities for questioning. Instead, of going to the authorities, the applicant (following his late father’s advice) “decided to leave the country.”
  5. The applicant could not recall whether he was present, when the local authorities came to his father’s house to ask questions about the motor vehicle and its contents (as found). The applicant admitted “I do not know the details of how the authorities came”. However, he told the Tribunal, that his (late) father “told me that I was wanted by the authorities.”
  6. The applicant said that he could not return to Pakistan because he would be considered “a gunrunner” for the local Taliban.
  7. The applicant said that being a Sunni Muslim in Pakistan – his “biggest issue was that he could be considered as a terrorist” or a “supporter of terrorists”.
  8. The applicant was asked whether in his absence – has his family faced any harm or threats? He said that they are living in fear and their movements are restricted to doing what is necessary for their needs (for example, going to school).
  9. Counsel in his written submission dated 28 June 2023[15] rebuts the conclusions concerning the security situation in the Kurram region referred to in the delegate’s decision with an updated analysis of the present security situation in the region which has (as is noted) seriously deteriorated in recent times and continues to deteriorate not only in the region, but generally speaking, engulfing the entire country. This is noted by the Tribunal and indeed, lends a significant degree of credibility to the applicant’s fears for himself returning to his home region but also for his immediate family’s welfare and wellbeing.

Mental and physical health issues

  1. The Tribunal was told that the applicant had been injured in a motor vehicle accident which occurred in February 2022. The applicant said that he is still receiving treatment – which includes regular appointments with his GP, Psychiatrist and Physiotherapist and has currently, a TAC claim[16] that is continuing and yet to provide him with a resolution.
  2. The applicant also said that he was taking a number of prescription medications for his mental health and physical injuries, which include “anxiety, depression, insomnia and PTSD.” The applicant said that he sleeps “roughly 2 hours a night” and this is caused because of the medications. The applicant also said that he “suffers nightmares and dreams” in which “the Taliban” “take his sons” and “reliving his accident with the car.”
  3. The applicant said that he consults regularly with his physiatrist, [Psychiatrist A] and his treating GP, [Doctor A] and both regularise his medications and therapy. The applicant also told the Tribunal that he has “more appointments with his orthopaedic surgeon”, [Doctor B] for treatment of his spinal injuries.
  4. The Tribunal considered all medical opinions submitted and accepts that the applicant suffers from mental and physical health issues.[17]
  5. The Tribunal also noted written submissions provided by the applicant’s counsel drawing attention to the concerns the applicant has concerning his ongoing health issues would not be given proper and ongoing attention in Pakistan if the applicant was to be returned to Pakistan.[18]
  6. Applicant’s counsel emphasised that there was ‘sufficiency of evidence’ already submitted by way of the Psychiatrist report of [Psychiatrist A] which made reference to the applicant’s ‘night terrors” which “included nightmares” that “varied in content from people kidnapping his children to falling off a mountain” and which also provided support with clinical opinion that the applicant faced a significant risk of harm to self and potential further relapse of PTSD and major depression which would require psychiatric hospitalisation if his current treatment ceased and the applicant requires further ‘reassessment and treatment’ for ‘an extended period (for up to 24 months)’ and that his ‘mental health and medical condition would deteriorate’ if he was returned to Pakistan and his current treatment regime ceased ‘for any reason.’

Consideration of Certificate issued by Department over the applicant’s file pursuant to section

  1. The Tribunal noted that a Certificate had been issued by the Department restricting the disclosure of certain information on the applicant’s files pursuant to s.473GA of the Act.
  2. The certificate was issued [in] June 2017 and was signed by [name deleted], Assistant Director, Temporary Protection Visa Assessment Branch and Delegate of the Minister for Immigration and Border Protection.
  3. The Tribunal provided a copy of the Certificate to the applicant’s counsel and requested that it be considered by them in consultation with the applicant and provide the Tribunal with their opinions of the Certificate and if ‘any reasons’ existed as to why it should not be considered relevant by the Tribunal in this decision.
  4. The applicant’s counsel was provided with three weeks to consider their response.

COUNTRY INFORMATION – PAKISTAN – THE RULE OF LAW – and TALIBAN INSUREGENCY – MILITARY OPERATIONS IN THE KURRAM AGENCY [19]

  1. All information considered by the Tribunal in determining this matter emanates from the DFAT Country Information Report – Pakistan (January 2022).

Taliban presence, violence and militancy in Kurram Agency

  1. The latest DFAT Country Information advises that although violence in Pakistan had been on downward trend in recent times, militant attacks in the former Federally Administered Tribal Areas (FATA), particularly in KPK, remain high as the security situation declines:

[2.34] Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

[2.35] Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e- Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks.

[2.36] Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks occur in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There are no attacks in Islamabad, Gilgit-Baltisan or Azad Kashmir.[20]

  1. This advice is further enhanced by more updated DFAT Smartravller Advice, (19 June 2023) which advises Australians to reconsider the need to travel to Pakistan overall due to the volatile security situation and very high threat of terrorist attack, kidnapping and violence.[21] A “do not travel’ warning is issued for the Khyber-Pakhtunkhwa (excluding Chitral district) due to poor security situation and high risk of kidnapping and to border areas with Afghanistan and India due to the volatile situation.[22]
  2. The Institute for Economics and Peace Global Terrorism Index (March 2023) rated Pakistan the seventh country most impacted by terrorism, with the number of deaths from terrorist attacks doubling compared to 2021. This is the third consecutive year where an increase in terrorism deaths has been recorded and the largest year-on-year increase in the last decade. The number of terror-related incidents remained relatively steady, with 206 incidents in 2021 and 298 in 2022, highlighting an increase in lethality to 2.2 people killed per attack on average.[23] Contrary to the findings drawn by the delegate with reference to the DFAT report, Centre for Research and Security Studies (CRSS) have considered that it is likely that terrorist activity will continue along the Afghanistan-Pakistan border despite counter-terrorism efforts and that Pakistan is likely to endure more violence into 2023.[24]
  3. The intensifying violence since mid-2021 aligns with the resurgence of the Taliban in Afghanistan and withdrawal of US troops which had previously offered support to against the Pakistan Taliban – Tehreek-e-Taliban (TTP). It was reported in December 2022 that the TTP launched a blitz of hybrid attacks, combining suicide bombings and hostage-taking in the KPK Province in the midst of ongoing hostility against Pakistan state forces.[25]
  4. Reports note that in the last two years since 2021, the TTP has obtained new, more sophisticated weapons and relocated fighters from Afghanistan to Pakistan and is now turning its focus back to its war against the Pakistani state. In an attempt to build sustainable support for its war against the Pakistani state, the TTP is now expanding its exploitation of local grievances. The TTP narrative exploits domestic grievances to legitimize fighting against the Pakistani security forces. For example, the group claims it fights to end the perceived deprivations of the Pashtun and Baloch tribes and to protect their rights vis-à-vis the state. It also claims it is fighting to end socio-economic injustice and liberate the public from the corrupt rulers and the corrupt system in the country.[26]
  5. For many Pashtuns in the KPK and mountainous villages and regions of Pakistan, reappearance of the TTP heralded a return of the TTP's oppressive control when targeted assassinations, bomb attacks, extortion, and harassment dominated daily life in some parts of Khyber Pakhtunkhwa.[27]
  6. DFAT’s assessment of the security situation for Pashtuns in KPK is as follows:

[3.18] Pashtuns 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. Elsewhere in Pakistan, 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, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns.[28]

  1. Counter-terrorist operations are in force throughout KPK which has increased the incidence of clashes between militant groups and Pakistan government forces, with media noting an uptick in attacks in 2023. In January 2023, a suicide bomber detonated his vest in a mosque inside a police compound in the north western city of Peshawar, killing more than 80 officers as the building collapsed and rained down rubble on worshippers. The following month, five were killed when a TTP suicide squad stormed a police compound in the southern port city of Karachi, prompting an hours-long shootout.[29]
  2. Sources report that the Pakistan Army has become adept at manufacturing ‘victories’ against ‘terrorism’ in theatre after theatre, though each year has seen increasing terrorism-related fatalities in the country. In February 2022 it was reported that in Upper Orakzai, Security Forces (SFs) took control of Dabori, while Mamozai, Ghaljo and Shahoo areas are still in Taliban control.[30]

Sunni Pashtuns in the Kurram Agency and Pakistan

  1. DFAT refers to the ongoing sectarian violence relevant to the KPK region as follow:

[2.41] Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan.[31]

[3.31] Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).[32]

  1. As recently as May 2023, eight teachers of government school were killed in separate incidents in Parachinar, KPK, where it was reported that heavily armed terrorists ‘by the enemies of education’ opened fired at Shia teachers.[33] Whilst speculation over the motivations for the attack remains, ongoing sectarian violence between Sunni and Shia Pashtuns in the community has been cited as a possible angle to the carnage in recent months.[34] The killing of a Sunni teacher, which has been suspected to be a motivation for the retaliated killings of further Shia teachers, saw an emergency declared in all the health facilities of the district and the closure of schools.[35] Local tribes of KPK responded by staging a protest condemning the killings and local leaders refuted claims that the brutal killings were spurred by a land dispute.[36]
  2. DFAT reports on the inability of Pakistan security forces to protect the population from sectarian issues as follows:


[5.2] 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.[37]

  1. DFAT also reports that the Pakistan authorities’ specific profiling of Pashtuns as being associated with the TTP is a source for its systematic and discriminatory actions against this particular group:[38]

[3.17] Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low39level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating, which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.

Lack of mental health and medical services in Pakistan

  1. DFAT’s assessment of the state of healthcare, including mental health, in Pakistan is as follows:

[2.10] The overall standard and availability of healthcare in Pakistan is low. The Lancet’s Healthcare Access and Quality Index ranks Pakistan’s healthcare system 154 out of 189 countries. According to the UNDP, Pakistan spends approximately 2.9 per cent of GDP per year on health, low by global standards. There is one doctor per 1,000 people, and even fewer nurses and midwives. Life expectancy is 67.3 years (68.3 years for women, 66.3 years for men). The infant mortality rate is 57.2 per 1,000 live births.

[2.12] As much as 70 per cent of healthcare costs are borne as out-of39pocket expenses by patients, and catastrophic healthcare expenditures can push households into poverty, especially in rural areas.

[2.14] 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.[39]

  1. Media reports as recently as April 2023 have substantiated that Pakistan’s public health crisis is a factor of Pakistan’s downward economic spiral, rising inflation and recent natural disasters that have driven the price of treatment to unaffordable levels, forcing many families to choose between healthcare and other necessities.[40] Shrinking foreign currency reserves have caused shortages of imported drugs and medical equipment as authorities imposed import restrictions to protect remaining foreign reserves, a move that exacerbated shortages of medical equipment and raw materials for drugs.[41] Inflation hit Pakistan recently approved a rise of up to 20% in retail prices of general medicines and 14% for essential ones.[42] Government controls on drug supplies have therefore deprived the most vulnerable in the community of affordable access to treatments and medications.
  2. The National Commission for Human Rights (NCHR), in collaboration with Taskeen Health Initiative (Taskeen) and with the support of the United Nations Population Fund (UNFPA), launched a report on mental health and human rights in Pakistan in August 2022, Malpractice in Mental Health in Pakistan: A Call for Regulation. The aim of this report was to identify the gaps in mental health policy, legislation, licensing, qualification, and ethical mental health service delivery in order to highlight the human rights violations and malpractice that those with mental health issues face as a consequence. While presenting the report findings upon launch, Chairperson NCHR Rabiya Javeri Agha highlighted, in particular, how “limited regulation of the mental health sphere means that anyone can offer mental health counselling and treatment without accountability, which can lead to incidents of human rights abuses and exploitation of vulnerable populations. Regulation and promotion of ethical mental health services are imperative.”[43] According to Taskeen CEO Mr. Irfan Mustafa, “with the growing burden of mental illnesses, demand for mental health services is increasing. This creates a space for unqualified professionals to take advantage of vulnerable patients, compromising their human rights. It is the need of the hour to enact policies to regulate mental health services to ensure that only qualified mental health professionals are providing support to patients of mental illness.”[44]
  3. Amongst a swathe of data presented by the NCHR Report on Pakistan’s deficits in dealing with those requiring mental health treatment, of particular significance is the report’s findings in relation to six aspects that can result in the violation of the human rights of end-users, including: 1) gaps in mental health legislation, regulation and licensing; 2) issues with confidentiality and privacy; 3) misrepresentation of credential and qualifications; 4) inappropriate or unethical provider behaviour; 5) issues in diagnosis and treatment; 6) miscellaneous problems in care; and, 7) Problems faced by women and girls.[45] The report notes the Pakistan Constitution does not guarantee the right to health and that despite the passing of legislation in the respective provinces in the last 5-8 years, comprehensive mental health plans or effective mental health policy resulting from the legislation have not been established. Moreover, healthcare establishments and facilitates providing mental health services, including psychiatric clinics and rehabilitation centres, remaining unregulated and unchecked.[46]
  4. With respect to the situation in provinces including KPK, the report identifies that, being governed under its own provincial Mental Health Act, there is no endorsed code of ethics or healthcare standards that exists neither at a federal or provincial level. Due to the disconnected structure of professional regulation and lack of formal governing body for mental health practitioners more broadly, many mental health practitioners at present are able to practice without requisite qualifications and regulation. Whilst psychiatrists are required to validate their licence and qualifications with the Pakistan Medical Commission, other informal professional bodies are private with no regulatory, licensure or government mandated authority, leading to potential for grave human rights abuses in the mental health sphere.[47]
  5. Moreover, with an estimated 400 psychiatrists for a population of 220 million, equating to one psychiatrist per 550,000 Pakistanis, the prospects of accessing and affording mental health treatment by a registered professional, particularly in the circumstances of the Review Applicant, is tremendously low. The report notes that most of the facilities that do exist are located in urban centres, and that one session with a qualified mental health practitioner is urban centres like Lahore can cost up Rs. 10,000 preventing common people with mental health disorders from being able to access medical help.[48] We submit these factors are barries to access and the Review Applicant would be unable to sustain himself in order to access treatment whether in KPK or elsewhere in Pakistan.
  6. With respect to access to essential prescription medicines in Pakistan, a study of the availability of medicines in Balochistan, Pakistan has found that whilst Pakistan’s private sector has better access to critical medications than the public sector, low- and middle-income nations such as Pakistan are among the most underserved in inexpensive vital medicines. Patients are frequently forced to purchase medications from private facilities, which charge exorbitant fees. Despite the limitations of the study, it highlighted that the cost of standard treatment with OBs (originator brand drugs) was unaffordable. Antibiotics (ciprofloxacin, clarithromycin, and ceftriaxone) and treatment courses for seizures (carbamazepine) were unaffordable medications that exceeded the minimum daily wage.[49]
  7. Reports in 2023 confirm that a shortage of drugs and medical equipment has also left doctors and operations theatres devoid of necessary medicines to perform surgeries and procedures.[50] This, together with findings that 50% of the population of Pakistan does not have access to primary healthcare services and that a lack of financial resources is a primary barrier to accesses primary healthcare,[51] supports the position that the Review Applicant would be unable to access diagnostic and surgical services relevant to the treatment of his physical condition.
  8. There are also reports of violence related to accessing healthcare in Pakistan. A report published by the Safeguarding Health in Conflict Coalition (SHCC) says incidents of violence against or obstruction of healthcare in Pakistan more than doubled in 2022 as compared to 2021, likely reflecting the broader increase in insecurity in the country.[52] Nearly two-thirds of all incidents took place in the border areas of KPK; although mainly related to vaccination campaigns, attacks against healthcare facilities nonetheless indicates the instability of the healthcare landscape.
  9. The UN International Organisation for Migration (IOM) has expressed that health is a fundamental human right entitled to everyone and in its highest attainable standard it conducts to living a life in dignity. Access to integrated care is critical to good health. However, efforts to realize this right often exclude vulnerable groups including migrants, and including returnees. IOM studies have shown that 58 per cent of migrants in vulnerable situations who were assisted to return in 2021 had health-related challenges and, significantly, that returnees face additional barriers to health care access, on top of those faced by the general population.[53] Returnees have reported being denied care more often at post-return compared to their pre-migration stage and that barriers experienced by some returnees include denial of care when their health condition occurred overseas.[54]

FINDINGS AND REASONS FOR DECISION

The issue of credibility

  1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIIhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes the cautionary note expressed by Foster J at [482]:

care must be taken that an ever-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted

  1. The Tribunal also accepts that “...if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt” see: The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, (1992) at para [196]). However, the Handbook also states at para [23]:

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

  1. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by generally credible but unable to substantiate all of their claims.
  2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: see, MIMA v Rajalingam (1999) 93 FCR 220.
  3. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by and applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see: Randhawa v MILGEA (1994) at [348] per Heerey J and Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547.

Consideration of the applicant’s claims

(a) Claim the applicant was a shop owner from 2004 to 2011
  1. The delegate in his decision, found the applicant’s claim that as a shop owner at [Bazaar 1], he was threatened and mistreated by the Taliban as ‘not credible.’
  2. At the hearing, the Tribunal discussed this aspect of the applicant’s claims with the applicant in detail.
  3. The applicant told the Tribunal that he was the proprietor of a local shop which sold [products 1] and [related products] (a considerable amount of this merchandise being foreign sourced) to locals and for the period between 2004 to 2011. According to the applicant, this shop, which he had established provided him with a living that was enough to sustain him and his family.
  4. Nevertheless, according to the applicant’s evidence, with the gradual infiltration of the local area by militants – especially – the Taliban - his shop came under their attention and before long, the applicant had pressures placed on him to ‘cease selling foreign merchandise’ to the locals.
  5. The applicant tried to reason with these militants but that attempt over a period of time, developed into a more forthright threat of harm towards his person if he did not accept the demands of the Taliban to cease operating his business. After receiving these threats both verbally and in unsigned correspondence, the applicant ceased operating his shop and this (according to the applicant) caused him extreme financial hardship – having lost his only income source.
  6. The Tribunal noted that the delegate in his decision, did not find credible the applicant’s claims that he had been threatened, mistreated, and harmed by the local Taliban.
  7. Further, the delegate did not accept that the applicant was of adverse interest to the Taliban.
  8. The delegate came to this conclusion concerning the applicant’s claimed circumstances citing a single source of country information which advised that Taliban threats and violence towards store owners in Pakistan between 2000 and 2011 were ‘well-documented’ and this included the entire Federally Administered Tribal Areas (FATA) and therefore found as not credible the applicant’s claims because there were no sources found to support the Taliban had targeted the area where the applicant’s shop operated from – that being - [Bazaar 1].
  9. What is noted here, by the Tribunal, is that the delegate did accept that the applicant was the proprietor of a local business though the delegate’s conclusions about why it ceased did not involve the Taliban. The Tribunal has a different view having considered the applicant’s evidence, counsel’s submissions and the updated country information that is available. Also, the applicant in his evidence, did state that having received unsolicited threats about his business he had also heard that other small local shop proprietors elsewhere in the FATA had met with gruesome fates because they had refused to accept the warnings of local extremist groups concerning their business operations. Faced with this type of situation, it would be reasonable in the opinion of the Tribunal, for an individual in the applicant’s position to have cause to have concerns as to force him (as it happened) to cease operating his shop and to look for other sources of employment – which the applicant, did. The Tribunal finds it credible that the applicant would have had concerns – that were significant – having heard that other shop owners in the area had been the subject of reprisals by local political and religious-inspired militants and that what he did – cease his business – and this decision was actually caused by his fear that he could be the next statistic of violence in a region that was slowly deteriorating from a state of supervised order to a state of violence.
(b) The applicant’s work as ‘[an occupation 1]’ for the foreign company – [Business 1] and Non-government NGO - [Business 2]
  1. The Tribunal noted that the delegate accepted that the applicant was employed by [Business 1] and the Pakistani NGO, [Business 2] as [an occupation 1] from July 2012 to February 2013. The applicant confirmed for the Tribunal in his evidence that his employment as [an occupation 1] for these two entities for the period he claimed, and the Tribunal accepts that he was so employed. The applicant also (in this period) claimed that the local Taliban was looking for him, and one day they came to his home and stole his car (a [Vehicle 1]). The applicant also claimed that the motor vehicle was found a few days later ‘abandoned’ but ‘full of weapons.’ The issue raised concerning the alleged theft of the motor vehicle was not found to be credible by the delegate because (1) the delegate did not accept that the applicant had been targeted by Taliban for any particular reason and (2) the delegate did not find it persuasive that the authorities would insist that the applicant come to the police station voluntarily so they could arrest him for perceived wrongdoing without taking any steps to apprehend him. Also, (3) the delegate was of the opinion, that the applicant did not provide any satisfactory reason why he could not present to the police and provide an explanation about the alleged incident.
  2. The issue of the ‘motor vehicle’ theft the Tribunal noted, was not supported by any official documentation attesting to the matter having come to the attention of the local authorities nor that any action had been initiated implicating the applicant as directly involved in the ‘cash of arms’ as claimed being found in the applicant’s vehicle. The information is very limited and sparse for the Tribunal to make any conclusion. At best, the vehicle may have been stolen – these things do occur – especially in a region of Pakistan where law and order ebbs and flows on a daily basis and when security (as we understand it in the West) is either corrupted, ineffectual, or non-existent at times. The Tribunal can come to no conclusion on the vehicle’s theft and what was found in it as was claimed by the applicant except to say that theft is a possibility – the rest of the details attached to vehicle’s theft (the arms in it) is again possible but without evidence (actual) the Tribunal cannot come to a conclusion with any certainty.
  3. That being the case, the Tribunal found significant the evidence provided by the applicant concerning his employment as [an occupation 1] for the foreign corporation, [Business 1] and later, for the Pakistani NGO described as [Business 2]. The Tribunal accepts on the evidence on file and further evidence provided by the applicant and the explanatory remarks of the applicant’s counsel, that he worked for the company [Business 1] as a ‘contractor [occupation 1]’ from February 2011 to May 2012. Furthermore, the Tribunal accepts and finds that the applicant worked as a ‘[occupation 1]’ for the period July 2012 to February 2013 as claimed.
  4. The Tribunal noted the delegate when considering these claims regarding the applicant’s threat and fear of harm from the Taliban because of his work with [Business 1] and later, [Business 2], the delegate put no weight on the evidence (a letter) provided, because the threat letter submitted as evidence, did not mention [Business 1] as the employer. Subsequent to the hearing, the applicant’s counsel provided information verifying the existence of these entities – one foreign company and the other a local NGO. The Tribunal also noted the reference letter in the applicant’s SHEV Department file [number] (Department File, folios 35; 205) evidencing the applicant’s work as [an occupation 1] in what was described as ‘[specified work]’ conducted in [a location] (NWFP) for [Business 4] between February 2011 and May 2012.[55] Indeed, the evidence substantiates in full and without doubt the applicant’s involvement with this foreign-owned corporate interest in Pakistan as he claimed. The Tribunal concludes and finds this to be true. More to the point, though information on the security situation for foreign corporations carrying out [work] within the Khyber Pakhtunkhwa (KPK) and formerly the Federally Administered Tribal Areas (FATA) regions in a period now – well over a decade is difficult to source (as Counsel states in their written submission) the evidence currently available (as Counsel submitted) and also accessed and considered by the Tribunal, lends support in the Tribunal’s opinion, to the conclusion that the volatile security situation and threat of violence against (past and current) employees of foreign corporate entities operating in the KPK and the former FATA regions, which include the [Business 1], during the 2011-2012 period as supporting the applicant’s real fear of harm concerns from militant groups which include the Pakistan Taliban (TTP) who have (in the past) and continue – today, to operate throughout these volatile regions of Pakistan. Of interest to the Tribunal was the evidence submitted which reported (relevant) to [Business 1’s] operations across Pakistan, a [report] authored by [a named agency] in June 2012 (referring to a [source]) records that [number] employees of the [Business 1] were [killed] in an attack in eastern Balochistan in September 2011, with the [named] militant group, claiming responsibility for the attack.[56]
  5. Moreover, media sources reported that the level of the militant threat against [foreign] companies was particularly prevalent prior to 2014 with military operations led by the Pakistani army conducted in June 2014 and were still in operation in 2017 with the aim to lessen the security concerns of foreign interests which have invested in Pakistan’s regions.[57] As the Pakistan Forward report makes it clear, the militant threat was particularly present in the area of North Waziristan, and this confirms and provided corroborative support to claim made for the fact that companies in connection with [Business 1], including [Business 4] were already operating in KPK and areas near FATA before 2017.[58]
  6. Further information provided to the Tribunal, suggests that studies conducted [in] Balochistan indicate that violent opposition to [foreign businesses] in Pakistan, particularly against [specified national] corporations in the period prior to 2012, is well documented and adds support to claims made describing [Business 1’s] earlier operations as a foreign company with a longstanding history of opposition from militant forces in Pakistan.[59] It does not come as a surprise, that the threat against [foreign businesses] in Pakistan continues, with the TTP claiming responsibility for an attack [on] facilities operated by [a named business] in the [Town 3] district of KPK as recent as May 2023.[60] Reports of the incident also confirm that the ‘TTP have operated for years from remote mountains in the northwest, launching attacks on security forces and infrastructure in their campaign against the state.’[61]
  7. Indeed, the Tribunal accepts that there was an increased hostility and volatile security situation which affected the applicant directly, being an employee (a [occupation 1]) for a foreign company, [Business 1] in the period he worked for [Business 1]. The Tribunal accepts and finds that his employment would have (over the time he was employed) caused him to come to the attention (adverse interest) of local militants (including the local Taliban) as he carried out his duties for his employer in and around North Waziristan.
(c) The applicant’s work with local-Pakistani NGO, [Business 2]
  1. The Tribunal noted the applicant’s evidence during the hearing that he worked as [an occupation 1] for the Pakistani NGO, [Business 2] and this involved supplying food and tins of supplies to victims of conflict. The Tribunal noted the letter, entitled ‘Experience Certificate’ corroborating the applicant’s work with this NGO between the period July 2012 and February 2013.[62] The Tribunal accepts that the applicant was in the period mentioned an employee for the Pakistani-based NGO, known as [Business 2]. The Tribunal further noted the evidence provided by the applicant’s counsel which were – meeting minutes produced in 2013 by [Agency 1], Pakistan – global [organisation] (established in 2010) and which worked directly with partners including NGOs, the Red Cross and UN organisations and indicates that [Business 2] undertook operations of food distribution to internally displaced persons in the KPK and FATA regions as well as others. The report of February 2013 regarding its humanitarian operation plan in KPK/FATA area records [number] hubs and [distribution] points were in operation for food distribution and this included [community] programs which involved the [Business 2] which assisted in the distribution of food. The Tribunal noted that the [Agency 1] report submitted by the applicant’s counsel shows that [Business 2] continued its food distribution activities throughout 2013 and still further.[63]
  2. The Tribunal having considered the entirety of the evidence before it, as submitted and the comments of the applicant’s counsel in paragraphs [18] to [22] of the written submission dated 3 August 2023, concerning the absence of corroborative evidence concerning the applicant’s activities from any family member, the Tribunal accepts the explanation of counsel for the absence of such evidence but takes into account the ‘Experience Certificate’ submitted as adequate proof of the applicant’s involvement with this Pakistani-NGO, [Business 2] in the period mentioned. Furthermore, it is reasonable for the Tribunal to come to the conclusion having taken into account the plethora of evidence submitted, concerning the volatility of the region, that the applicant had worked in, as [an occupation 1] for this local NGO, that his work would have caused him to have come to the attention of local militant forces – political or religious or both, which operated in that entire region (KPK/FATA) and therefore, the Tribunal finds that these activities undertaken by the applicant between July 2012 and February 2013 with the [Business 2] would have brought him to the attention of local militants and caused him to fear harm.

(d). The applicant’s mental health concerns

  1. The Tribunal noted that a further psychological assessment of the applicant was carried on 10 August 2023 and a report produced by [Psychologist A] dated 16 August 2023.[64]
  2. The Tribunal noted the report and its commentary concerning the applicant’s trauma injuries. In particular, the notes at [18] with regard to depression, anxiety and stress scales (of the applicant) which were assessed as follows:
(a) Stress: 42 (extremely severe)

(b) Anxiety: 42 (extremely severe)

(c) Depression: 36 (extremely severe)

  1. Also, the report noted that, with regard to the severity of depression:
(i) A score of 20-27 identifies severe depressive symptoms. {Applicant’s name} raw score was 25 which confirms that a depressive disorder diagnosis should be considered.
  1. Further, with regard to the severity of symptoms of PTSD, the applicant’s score was 59 that confirmed a diagnosis of PTSD and identified the severity of the applicant’s symptoms.
  2. Also, at [21] it was noted the applicant’s complex medical and mental health problems suggested that he was to be returned to his home region, it is unlikely that he will be able access comparable health services. Accordingly, without medical or psychiatric support, the applicant (it stated) would experience significant deterioration in his functioning both in regard to his mental health and physical functioning.
  3. The report [at 24] stated that the applicant’s developed initial symptoms with a PTSD diagnosis in response to his trauma exposure and his fear for his own family’s safety. Also, at [26] the report states that the applicant recognises that his capacity to manage the impact of his past trauma was reduced post-accident due to the development of injuries and chronic pain. Testing on the DASS 21, the PHQ-9 and PCL-5 confirmed current clinical symptoms that support the diagnosis that the applicant has mental health problems.
  4. The Tribunal noted the applicant’s counsel’s previous submissions of 28 June 2023 and 3 August 2023 which highlighted the protection obligations of this country as far as it concerned the applicant’s mental and physical health being one of the bases upon which he seeks protection. Furthermore, the Tribunal also took note of the available country information previously submitted and additional – which indicates an acute health crisis in Pakistan, lack of medicine and surgical treatments,[65] and human rights violations with respect to mental health services,[66] particularly, for returnees to Pakistan.[67]
  5. The Tribunal also noted the country information on the public health situation in Pakistan which shows an unwillingness of the Pakistani government to actively engage with the problem: the high level of neglect and disregarding treatment that people with a severe mental health needs face in Pakistan. There remains an unwillingness to effectively make positive contributions and adequate reforms as well as severe underfunding and under resourcing of sufficient supports to facilitate adequate mental health services across Pakistan and in KPK.[68]
  6. The information submitted to the Tribunal and having taken into account the medical evidence concerning the applicant’s physical and mental health concerns which are ongoing and acute in form, the Tribunal accepts that the applicant would be delivered a major inhuman treatment if he was forced (because of his removal from Australia) to seek non-existent or little available medical/and mental health treatment in Pakistan and in particular in his home region. Indeed, it is risk of harm of particular concern, that the persecutory effect of the lack of health services in Pakistan (today) added to the reality that the applicant has no available family, tribal, economic or community networks outside Kurram acts as further risk of harm to him and is reasonably foreseeable if he was to be returned to Pakistan. This is particularly made clear in light of the applicant’s psychiatrist’s ([Psychiatrist A]) opinion that the applicant “will be at a significant risk of harm to self and potential further relapse of PTSD and Major depression requiring psychiatric hospitalisation if his treatment is ceased due to any reasons.”[69] The Tribunal accepts and finds on the evidence (medical and independent information) before it that the applicant would face insurmountable odds concerning his health and future well-being if returned to his country and divorced of the required medical attention available to him on an ongoing basis while here in Australia and not available or adequate in his own country, Pakistan.

(e). Relocation in other parts of KP and relocation within the rest of Pakistan

  1. Real chance of serious harm must relate to all areas of the receiving country. Section 5J(1) (c) of the Act requires that if the Tribunal finds the applicant faces a real chance of persecution involving serious harm if he returned to Pakistan, that must relate to all areas of the country.
  2. In considering relocation, the Tribunal has considered whether there is a real chance of serious harm relates to the rest of the province Khyber Pakhtunkhwa outside the Swat Valley; and then, the rest of Pakistan outside the Khyber Pakhtunkhwa Province.
  3. The applicant submitted that he could not return to his home region because of his known profile having worked as a store owner selling western merchandise and later as one who had worked and collaborated with a foreign company ([Business 1]) and a local NGO working in close proximity with western-based humanitarian organisations which included the International Red Cross and the UN’s associated NGOs. The applicant claimed that he was exposed because of his work – more than his family and he did not feel sufficiently safe in KP and feared being returned there because he lived with the fear that Taliban there, would identify him even if he resided in other KP population centres.
  4. DFAT advises that most terror attacks happen in KP and Balochistan. While the Tribunal considers there is still a risk of harm to the applicant from the TTP should he relocate to certain areas in Pakistan outside the KP, such as Karachi, the Tribunal considers the country information indicates the risk of serious harm from the TTP is significantly lower in some areas of the country, particularly, Islamabad. DFAT comments that while Punjab and Sindh (especially Karachi) are also targeted for attacks, there were no attacks in Islamabad in 2020.
  5. There is also emerging but credible reports that that Pakistani security forces (since the takeover of Afghanistan by the Taliban in August 2021) have lost effectiveness in its ability to suppress Pakistani Taliban activities. The USIP commented on 4 May 2022, that in April 21, in a major escalation, Pakistan carried out coordinated airstrikes inside Afghanistan at suspected TTP locations but ended up killing civilians. In response, the Taliban summoned Islamabad’s envoy in Kabul and the group’s defence minister, Mullah Yaqub, threatening retaliation in the event of more attacks, albeit without naming Pakistan. For its part, Pakistan lodged the strongest protest to date on the use of Afghan territory by terrorist groups and indicated that it may engage in cross-border action again:


But Pakistan may have also overplayed its hand: The strikes killed at least 20 children among other civilians. Contrary to official Pakistani claims, there are no credible reports of killed TTP leadership. More significantly, even if some pragmatists feel the need to keep hostilities with Pakistan in check, the Taliban at large appears unmoved, as the TTP’s status in and activities from Afghanistan remain unchanged. At the same time, anti-Pakistan sentiment within the Taliban appears to have surged, shoring up support for the TTP within the Taliban. Pakistani strikes have also reinvigorated anti-Pakistan sentiment across Afghanistan’s political spectrum, who see them as a violation of Afghan sovereignty. Standing up to Pakistan or even militarily responding has the potential to shore up the Taliban’s domestic political standing.[70]

  1. The South Asia Terrorism Portal reported that Khyber Pakhtunkhwa recorded a total of 303 fatalities (71 civilians, 108 SF personnel, and 124 terrorists) in 130 incidents of killing in 2021, as against 216 such fatalities (31 civilians, 57 SF personnel and 98 terrorists) in 78 such incidents in 2020. Registered an increase of 40.27 per cent in overall facilities. There were 130 facilities in 130 in 2019. Clearly overall violence increased sharply over 2019-2021.[71]
  2. It is the Tribunal’s assessment based on the available country information that the degree of security throughout KP has not reached a sufficient or effective level whereby the applicant does not have a well-founded fear of persecution based on s 5J(2). Indeed, it has dramatically deteriorated, especially for civilians. Given the lack of effective protection measures, The Tribunal is satisfied that the applicant does hold a well-founded fear of persecution based on his actual political opinion against the Taliban and other Sunni radicals and known for his work as former shop owner selling western merchandise and his work (later) with a foreign company and local NGO which was closely associated (and supported) by western humanitarian organisations, should he return anywhere within the applicant’s home province of Khyber Pakhtunkhwa.

(f).Relocation within the rest of Pakistan

  1. DFAT comments that, while internal migration is widespread and common in Pakistan, it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. DFAT also comments that across Pakistan, ethnic stereotyping, and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, 'the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.' In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. DFAT also notes that Pashtuns report frequent blocking of their CNICs when relocating, which impedes access to property and assets. DFAT states that NADRA can block a CNIC for suspicious use – or allegedly for certain groups as a form of harassment and indicates it understands individuals have found it impossible to reverse a decision to block a card, and blocking is a precursor to cancelling a card. DFAT indicates it is also aware of reports CNIC applicants have been told they must travel to a NADRA office in their district of origin to apply to renew their CNIC, but states this is not official policy. DFAT comments that in some cases it may be necessary for applicants to travel to their district of origin to obtain other documents required for a CNIC application, for example, a birth certificate can only be issued by the union council of the district of origin. While DFAT assesses that Pashtuns outside of KP generally face a low risk of official and/or societal discrimination, DFAT states the risk increases if they come to the attention of authorities for any reason'.
  2. The Tribunal also notes that DFAT commented in its previous (February 2019) Country Information Report that Pashtuns migrating within Pakistan report ethnic profiling and harassment by security officials, including demands for bribes as high as PKR 500,000 (AUD 5,500) on the threat of being listed as a terrorist. At that time DFAT assessed that Pashtuns faced a medium risk of official discrimination in the form of terrorism-related and racial profiling by security forces in areas where they are a minority, particularly in Punjab. The discrimination and harassment in Punjab were such that DFAT advised at that time that Pashtuns sought to avoid resettlement in Punjab altogether (despite it being Pakistan's most populous and one of the more secure provinces).
  3. The Tribunal notes that the US Government's travel advisory indicates that while threats still exist, terrorist attacks are rare in Islamabad where there are greater security resources and infrastructure, and security forces are more readily able to respond to an emergency compared to other areas of the country.
  4. After carefully considering all the available evidence and the relevant country information, the Tribunal finds that outside of KP, where the applicant has no family support, he may well be treated with suspicion and/or hostility because of his Pashtun ethnicity, making it difficult for him to find accommodation and employment. The Tribunal also accepts there is a real chance that he will be expected to find accommodation outside of KP with his wife and dependent children. This would indicate the burden of care and meeting the costs of living for his family will overwhelming fall upon his shoulders.
  5. The country information cited above indicates that official and societal discrimination faced by Pashtuns seeking to relocate outside of KP can include ethnic profiling, harassment by security officials, demands for large bribes under threat of being listed as a terrorist, and blocking of CNICS/SNICS.
  6. The applicant also has very limited skills and education suitable for finding employment in metropoles like Islamabad, Rawalpindi, Lahore, Karachi, Faisalabad, Hyderabad, and Gujranwala. His work experience has historically been as a farmer. He has no functional literacy in Urdu or English and has only worked in low skilled employment while in Australia. While around 64 per cent of the total Pakistani population is rural, there is only a remote and not a real chance Pashto-speaking Pakistani internally displaced persons can successfully work among farming communities dominated by non-Pashto-speaking populations which have overstretched and poorly funded basic services. Poverty rates in rural areas of Pakistan, according to the World Bank estimates, is more than twice as high (30.7 per cent) than in urban areas (12.5 per cent).[72]
  7. The Tribunal finds that the applicant's vulnerability to harm is marginally increased due to his suffering treatable mental health conditions.
  8. The Tribunal considers that, in the applicant's particular individual and familial circumstances, the impact of the official and societal discrimination and harassment that the could face would amount to serious harm in that it could threaten his liberty and cause him significant economic hardship that threatens his capacity to subsist.
  9. The Tribunal concludes, therefore, that the applicant faces a real chance of suffering persecution involving serious harm anywhere in Pakistan, based on a cumulative consideration of the risks of serious harm he faces because of his actual and imputed anti-TPP political opinion in combination with his membership of a particular social group, as a member of a particular social group being ‘a person associated with the West’ due to his employment with a foreign company’ and ‘a person associated with a local NGO’ and his ethnicity.

(f). Availability of state protection

  1. While DFAT comments that Pakistan's formal legal framework provides for state protection of people's property, lives, places of worship and religious beliefs, 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. DFAT comments 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 forces and the judiciary. Police work in Pakistan is poorly paid and dangerous, and individual police officers often augment their salaries with bribes. The public perception of police is generally poor, although it has reportedly improved in recent years.
  2. DFAT indicates that despite measures introduced to curb violence across the country under the National Action Plan (NAP) - strengthened powers for military and paramilitary security forces and the establishment of military courts - successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.
  3. In March 2022, leaders of the non-violent Pashtun Tahaffuz Movement were sentenced to life imprisonment on ‘terrorism’ related charges. Voice of America reported on the trials as follows:[73]


Pakistani authorities say their country has been a victim of terrorism, and that thousands of
Pakistani citizens, including military personnel, have died in terrorist attacks over the past two
decades.

Pakistani military officials say they’re still actively fighting terrorists.

“Their desperate attempts for revival won’t be allowed to succeed,” the Pakistani chief of army
staff reiterated. “We will eliminate all remnants of terrorists, their abettors & accomplices
whatever is the cost,” a spokesperson for the Pakistani army said in a tweet February 9.

Critics, however, accuse Pakistan’s powerful military of covert involvement with militant
groups that conduct terrorist operations in India and Afghanistan.
There are also concerns that the military has been abusing anti-terror laws to stifle legitimate
dissent.

“Civil and political dissidence is not terrorism,” Afrasiab Khattak, a former Pakistani senator,
told VOA, adding that the government should stop treating political activists, particularly
Pashtun and Baloch minority rights activists who criticize state institutions, as terrorists.
Human rights organization also say minorities in Pakistan are subjected to discrimination and persecution with the government failing to provide protection.

  1. There is also a disturbing trend from nationalist movements against Pashto-speaking Pakistanis in areas outside of KP. In June 2022, ethnic riots broke out throughout Sindh with Sindhi nationalists and their allies targeting Pashtun residents and labourers:[74]

The calls came as several incidents of violence were reported in the province on Thursday, where shops and hotels owned by Pashtuns were attacked and forcefully closed, allegedly by Sindhi nationalists...

Meanwhile, hotels and shops owned by Pashtuns were attacked and forcefully shut in Dadu, Sehwan, Khairpur Nathan Shah, Kotri and Jamshoro. Armed men on motorbikes attacked three hotels in Kotri. In retaliation, the owners pelted stones leaving two men, identified as Uzair Soomro and Sadaqat Ali, injured. A heavy police contingent reached the spot and shifted the injured to Kotri’s District Headquarters Hospital. Police have also claimed the arrest of seven activists of nationalist parties in Dadu who were forcefully closing the shops. In the Sakrand area, activists of nationalist parties blocked a section of N5 National Highway at Noonari CNG station Thursday night following reports of disturbances and maltreatment of families by miscreants at Karachi’s Sohrab Goth area. The protest led to long queues of vehicles including buses and heavy vehicles. Jeay Sindh Qaumi Mahaz-Bashir (JSQM-B) leader Dr Niaz Kalani told Dawn that such protests would also be held in Moro, Ubauro and other areas. Pashtuns make up a large majority of drivers who drive trucks and goods carriers, moving cargo from ports in Karachi to other parts of the country. A large number of these trucks move on highways in Sindh to enter Punjab and travel further north towards Khyber Pakhtunkhwa.

  1. The available country information indicates that there is a strong element of anti-Pashtun chauvinism throughout areas not dominated by Pashto-speaking peoples within Pakistan, and this appears to be reflected in tolerance of anti-Pashto protests and the willingness of the authorities to single out Pashtun-led protests movements as threats against state security. This trend is exacerbated by the economic downturn in Pakistan whereby its economy has weathered localised lockdowns arising from pandemic restrictions, national political uncertainty, double digit inflation and tightening global financing conditions. The August 2021 takeover by the Pashtun-dominated Taliban of neighbouring Afghanistan has also worsened fears of Pashtuns seeking residency outside of KP, as exemplified by the former Prime Minister Imran Khan’s public remarks in October 2021 suggesting that all Pashtuns were ‘sympathetic’ to the Afghan Taliban.[75]
  2. The Tribunal finds that the level of protection available to the applicant, from the Pakistani authorities outside of Pashtun-dominated KP, does not meet the level of protection whereby the applicant can access protection in his receiving country that is durable, and where the protection consists of a an appropriate criminal law, a reasonably effective police force an impartial judicial system, as required by s 5LA(2). Therefore, the Tribunal finds that the applicant faces a real chance of persecution due to his actual and imputed opposition to the TPP and other Sunni militant groups. The chance of serious harm by the TTP, Sunni militants and/or political actors hostile to displaced Pashtuns from KP is heightened by the applicant’s illiteracy and economic hardship.
  3. Having considered that the applicant will be persecuted throughout his home province of Khyber Pakhtunkhwa and the country information about the rest of Pakistan, the Tribunal accordingly does accept the applicant faces a real chance of serious harm throughout the rest of Pakistan, pursuant to s 5J(1)(a), (b) and (c) and s 5J(2).
  4. The applicant, therefore, has met the definition of a refugee in s 5H(1) as an applicant with a nationality must, owing to a well-founded fear of persecution, be unable or unwilling to avail him or herself of the protection of his or her country of nationality.
  5. In summary, the Tribunal accepts the applicant has a well-founded fear of persecution based for a reason mentioned under s 5J(1)(a), should he return to Pakistan now or in the reasonably foreseeable future and meets the criterion of s 36(2)(a).

Conclusion

  1. For reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). As such the decision of the Tribunal is to remit the review applications for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Act

DECISION in 1826835

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

DECISION 2212665

The Tribunal sets aside the decision to refuse the Protection visa application and substitutes it with a decision that the Protection visa application was invalid.


Peter Vlahos
Member

ANNEXURE 1

Consideration of Certificate issued by the Department pursuant to s.438 of the Act

  1. The Tribunal noted that the Department had issued [in] June 2017 a Notification Regarding the Disclosure of Certain Information under s.473GA of the Migration Act 1958.
  2. The certificate was issued by [name deleted], Assistant Director, Temporary Protection Visa Assessment Branch and Delegate of the Minister for Immigration and Border Protection.
  3. The Tribunal notes that the Certificate had been issued for consideration and attention by the Department to the Immigration Assessment Authority (IAA) concerning certain information contained in file [number].
  4. The Tribunal noted that no certificate had been issued for the Tribunal to take note in any of the three files the Tribunal reviewed.
  5. Accordingly, the Tribunal determined not consider the certificate because the Tribunal considered that the information to which the certificate applied was not relevant to the applicant’s review and was not relevant to the applicant’s claims for protection as determined by the Tribunal in this decision.

Peter Vlahos

Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:
(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

[1] According to Departmental records, the applicant departed Pakistan legally, by air in March 2013. He travelled to [Country 1], with a stopover in [another country]. He remained in [Country 1] for a few hours and continued his travel to Indonesia by boat. He remained in Indonesia for about six weeks. From Indonesia, the applicant travelled to Australia by boat. He arrived in Australia as a Direct Entry Person on a vessel, code-named ‘[name]’, [in] April 2013.

[2] Department of Home Affairs File [number]_ Drivers Licence _[deleted]; [File number]_unverified document_[File number]_ [Applicant’s name]
[3] Ibid, Department of Home Affairs File, [File number]_ Additional documents_ 31 December 1983_National ID Card_[deleted]66
[4] see, Department of Home Affairs File [number]_Delegate’s decision record, at p.4
[5] [File number]_Statutory Declaration dated 7 August 2016.
[6] Ibid _other annexures country information Annexure no.4
[7] Ibid Department File_ SHEV_submission_ 17 December 2020.
[8] Ibid _SHEV_submission_reference 201489
[9] see Department File _Pre-interview submissions_ reference 201489
[10] [File number]_Email received by Department dated 17 May 2022 _providing further information.
[11]see, Counsel’s written submission at p.2 to p.5 and supporting materials concerning company [Business 1], in AAT File, Counsel submission dated 3 August 2023.
[12]see, Department of Home Affairs File, document copy [folio 206]
[13]see, Counsel’s submission dated 3 August 2023 at paragraph [16] and (annexure 9)
[14] [Source deleted.]
[15]see, AAT File Counsel’s written submission dated 28 June 2023 – Security situation in Kurram district, at paragraph [38] at pp.7-8 and at paragraph [75] to [112] at pp. 14-25.
[16][Source deleted.]
[17] [Multi-disciplinary] Report dated 19 December 2019, Letter [Doctor A], GP dated 21 March 2023, Report [Physiotherapist A], 23 March 2023, Report of [Psychiatrist A], Psychiatrist, dated 18 April 2023 and Evidence of the Review Applicant’s more recent diagnostic appointments and procedures June/July 2023 and evidence of prescription medications listed.
[18]see, AAT File, written submission (Legal) dated 23 June 2023 and 8 August 2023 paragraphs [40] to [48] at pp. 8 to 10 and p.7 paragraphs [23] to [27] at pp.7-8 (submission (written) dated 8 August 2023).
[19] Department of Foreign Affairs and Trade, Country Information – Report – Pakistan (Updated), 25 January 2022.
[20] DFAT Country Information Report – Pakistan, 25 January 2022, 20220125094359, p.13
[21] Smartravller, ‘Pakistan Travel Advice and Safety’ (Web Page), updated at 19 June 2023, available at https://www.smartraveller.gov.au/destinations/asia/pakistan .
[22] Ibid.
[23] Institute for Economics and Peace, Global Terrorism Index: Pakistan, (Report 2023), 27.
[24] “2022 Ends with Deadliest Month for Security Forces after Decade” DAWN.COM, January 1, 2023 accessed online https://www.dawn.com/news/1729229.
[25] Atul, Aneja, ‘Pakistan faces perfect storm as militants launch multiple attacks in Khyber Pakhtunkhwa border province’, India Narrative, 21 December 2022.
[26] Abubakar, Siddique, ‘As Fighters Return, Pakistanis Fear A Repeat of Taliban Carnage’, RadioFreeEurope, 17 August 2022.
[27] Ibid.
[28] DFAT Country Report – Pakistan, January 25, 2022, at p. 20
[29] Abid Hussain, ‘At least 12 killed in blasts at Pakistan counterterrorism office’, Aljazeera, 24 April 2023.
[30] Outlook, Conjuring ‘Victories’: Operation Orakzai is yet another instance of the Pakistan Army declaring victory over ‘terrorism’ which is easily rebuffed by various local and official sources, 3 February 2023.
[31] DFAT Country Report – Pakistan, 25 January 2022 see, at p.15
[32] Ibid, see p.22
[33] Khan, Afzal, ‘8 govt school teachers killed in Parachinar in separate incidents’, SAMAA, 4 May 2023.
[34] Syed Zafar Mehdi, ‘Another Shia carnage in Pakistan’s Parachinar lays bare Takfiri footprints.’ Press TV, 9 May 2023.
[35] Economic Times, ‘Eight school teachers shot dead in targeted attacks in Pakistan’s restive northwest’, 4 May 2023.
[36] Deeksha Sharma, ‘In Pakistan’s Khyber Pakhtunkhwa, Local Tribes Stage Protest Over Parachinar Killings’, Pakistan News, 8 May 2023.
[37] DFAT – Country Information Report – Pakistan (25 January 2022) at p.40
[38] Ibid, DFAT Report, at p. 20.
[39] Ibid, DFAT Report, at pp.9-10.
[40] Ibid
[41] Ibid
[42] Ibid
[43] Daily Times, ‘NCHR launches report on mental health and human rights’, 25 August 2022.
[44] Ibid
[45] National Commission for Human Rights (NCHR), Pakistan, Malpractice in Mental Health in Pakistan: A Call for Regulation, Report, August 2023, p.14
[46] Ibid, p.23-25
[47] Ibid, p.8-9
[48] Bibi M, Haq NU, Kareem A, Ullah, Baloch N, Rehman G, Nasim A. Evaluation of Availability, Prices, and Affordability of Selected Essential Medicines in Balochistan, Pakistan. Int. J Public Health, 22 July 6; 67
[49] Saurav Mukherjee, Ed. ‘Pakistan economic crisis: Now country’s healthcare system gets hit, medicines supply deteriorate’, Mint, 26 February 2023; Aiman Usman, ‘Major Challenges Faced by Health Sector in Pakistan’, MARAHAM, 6 August 2022.
[50] Memon Medical Institute Hospital, Access to Primary Health Care in Pakistan (Web Page, 7 March 2023) <Access to Primary Health Care in Pakistan (mmi.edu.pk)>
[51]Amin Ahmed, ‘Violence against healthcare’ in Pakistan doubled in 2022’, Dawn, 3 June 2023.
[52] UN International Organisation for Migration (IOM), ‘The Gendered Reality of Returning Migrants on Their Health Needs’, IOM Blog, 08 March 2023.
[53] Ibid
[54] Ibid
[55] see, AAT File – Applicant’s Counsel’s written submission dated 3 August 2023, in particular ‘Annexure 3’
[56] [Source deleted.]
[57] [Source deleted.]
[58] [Source deleted.]
[59] [Source deleted.]
[60] [Source deleted.] Also see Counsel’s written submission dated 3 August 2023 ‘Annexure 6’ AAT File.
[61][Source deleted.]
[62] see, AAT File – Applicant’s Counsel’s written submission dated 3 August 2023, in particular, ‘Annexure 13’
[63] Ibid, see ‘Annexure 8’
[64] see, AAT File – Applicant’s Counsel’s written submissions dated 28 June 2023 and 3 August 2023 and attached ‘Annexures’
[65] Ibid
[66] Ibid
[67] Ibid
[68] Ibid
[69] Ibid
[70] Pakistan’s Twin Taliban Problem, 4 May 2022, by Asfandary Mir, United States Institute of Peace,
https://www.usip.org/publications/2022/05/pakistans-twin-taliban-problem
[71] Khyber Pakhtunkhwa – Assessment – 2022, SATP, https://www.satp.org/terrorismassessment/
pakistan-khyberpakhtunkhwa
[72] Poverty & Equity Brief: South Asia: Pakistan, April 2019,
https://databankfiles.worldbank.org/data/download/poverty/33EF03BB-9722-4AE2-ABC7-
AA2972D68AFE/Archives-2019/Global_POVEQ_PAK.pdf
[73] VOA, ‘Pashtun Activists Decry Pakistan’s Anti-Terror Trials,’ 4 March 2022 available
https://www.voanews.com/a/pashtun-activists-decry-pakistan-s-anti-terror-trials- /6470814.html.
38 DAWN, ‘Calls for Calm as Ethnic Strife Threatens Peace in Sindh,’ 15 July 2022 available
https://www.dawn.com/news/1699697.
[74] RFERL/Gandhara, ‘Pakistan’s Imran Khan Under Fire For Claiming Pashtuns are Taliban
Sympathisers,’ 15 October 2021 available https://gandhara.rferl.org/a/imran-khancomments39pashtuns-
taliban/31511322.html
[75] RFERL/Gandhara, ‘Pakistan’s Imran Khan Under Fire For Claiming Pashtuns are Taliban
Sympathisers,’ 15 October 2021 available https://gandhara.rferl.org/a/imran-khancomments39pashtuns-
taliban/31511322.html

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