Last Updated: Thursday, 23 November 2017, 12:01 GMT

AATA Case No. 1605812

Publisher Australia: Administrative Appeals Tribunal
Publication Date 16 January 2017
Citation / Document Symbol [2017] AATA 158 (16 January 2017)
Cite as AATA Case No. 1605812, [2017] AATA 158 (16 January 2017), Australia: Administrative Appeals Tribunal, 16 January 2017, available at: http://www.refworld.org/cases,AUS_AAT,592d8eb54.html [accessed 23 November 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

1605812 (Refugee) [2017] AATA 158 (16 January 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1605812

COUNTRY OF REFERENCE: Pakistan

MEMBER: Chris Thwaites

DATE: 16 January 2017

PLACE OF DECISION: Melbourne

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


Statement made on 16 January 2017 at 9:37am





CATCHWORDS
Refugee - Protection visa - Federal Court remittal - Pakistan - Political - Awami Party supporter - Peace committee member - Religion - Sunni - Fear of Taliban attacks - Mental health issues - Relocation not possible

LEGISLATION
Migration Act 1958, ss.5(1), 36(2)(a), (aa), (b), (c), 65, 91R(1) 91R(1)(b)), 91R(1)(c)), 91R(2), 499
Migration Regulations 1994, Schedule 2

CASES
MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] August 2012.
  3. [In] November 2012 the delegate refused to grant the visa.
  4. [In] December 2012 the applicant applied to the Refugee Review Tribunal for review of that decision.
  5. [In] July 2013 the Refugee Review Tribunal affirmed the delegate's decision.
  6. The applicant then applied for judicial review of that decision and [in] February 2014 Judge [name] of the Federal Circuit Court of Australia ordered the decision by the Refugee Review Tribunal be quashed and the matter be returned to the Refugee Review Tribunal to be determined according to law. The reasons for judgment indicate the Refugee Review Tribunal failed to deal with an integer of the applicant's claims, that the applicant had a well-founded fear of persecution based on his Pashtun ethnicity.
  7. The matter was remitted back to the Refugee Review Tribunal (differently constituted) and [in] July 2014 the Refugee Review Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.
  8. The applicant then applied for judicial review of that decision and [in] April 2016 Judge [name] of the Federal Circuit Court of Australia ordered the decision by the Refugee Review Tribunal be set aside and the matter be returned to this Tribunal to be determined according to law. The reasons for judgment indicate the Refugee Review Tribunal failed to take the applicant's particular circumstances into account when determining that the applicant was not at risk of arbitrary deprivation of life based on random violence in the Swat Valley.
  9. The matter was therefore remitted to this Tribunal.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department's file relating to the applicant's protection visa application and the Tribunal's files relating to the review application.
  2. The applicant's initial reasons for claiming protection are contained in his visa application forms. In those forms the applicant states he left Pakistan due to threats by the Taliban. The applicant indicated he had experienced harm in Pakistan, and states he fears he could be attacked and perhaps killed by the Taliban if returned to Pakistan because of his perceived political opinion and membership of the peace committee. The applicant indicates he does not think the authorities of Pakistan can and will protect him if he returns and states they are weak, and are incapable of protecting him. The applicant indicates a detailed statement is attached to his visa application forms.
  3. The applicant provided a written statement as an attachment to his visa application forms. In summary the applicant states he is a citizen of Pakistan and a Sunni Muslim born in [year] in [village], Mingora, North West Frontier Province Pakistan. The applicant states he left Pakistan in fear of the Taliban. The Taliban infiltrated his village and surrounding areas in 1994 and became very active around 2008. In 2009 his village was taken over by the Taliban. The people of his village were vacated by the army and moved to [name] city where the applicant lived with his family for two months. After the army chased out the Taliban the applicant's family return to his village in mid-2009. The applicant states remnants of the Taliban were still in his village. The army established the peace committee to counter the Taliban and to identify and notify them of the Taliban's presence. The applicant joined the committee which had [number] other members. The applicant provides the names of the other members of the committee, and gives details of the frequency of meetings and activities undertaken, including guard duties and identifying Taliban members to the army.
  4. The applicant states [name], a member of the committee, was shot and killed at the marketplace by the Taliban about 18 months ago. The Taliban took responsibility and it was widely publicised in print. The applicant also states his [relative] [name], a member of the peace committee, was killed by a Taliban hand bomb while on foot walking in his village about eight months ago. The applicant states another member of the committee, [Mr A], was threatened by the Taliban and moved to Karachi to flee the country by ship and while he was there was shot and killed by the Taliban about six months ago.
  5. The applicant states that around April 2012 he received a letter from the Taliban threatening that they were going to kill him. He found the letter near his front door tied to a pebble. It was written in Pashto and stated that he would be killed because he was working for the army against them. After finding the letter the applicant was scared to leave his house and spent the next day or two with his children inside his house and then decided to flee the village to spare his life. He left the village and went to Karachi where he stayed for about 15 days. While in Karachi he learned another member of the committee was killed by the Taliban in his village and this was reported in print and the news and his wife called him and told him. The applicant flew to [country] and boarded a ship around April/May 2012 bound for Australia. The applicant states his family is continuously threatened by the Taliban and they told his wife that he will be killed if he returns to Pakistan.
  6. The applicant provided a copy of his Pakistan passport to the Department as well as a copy of his Seamen Engagement and Discharge record and a letter from [a society] [village] Distt:SWAT Pakistan dated [in] August 2012 stating the applicant is a bonifide resident of village [name] Tehsil [name] District Swat Kyber Pakhtunkhwa and is a vital member of the [village] Peace Committee from 2009, and is not involved in any acts of terrorism or in relation to any terrorist violent group.
  7. The applicant also provided a copy of an online media article dated June 2012 reporting the death of [name], and an online media article from 2011 reporting deaths in Karachi naming [Mr A] as one of the victims. The applicant provided a document in a language other than English later identified as a First Information Report, as well as a copy of a hand written letter and its English translation addressed to the applicant from the Taliban Movement of Swat stating it has come to their knowledge through their informers that the applicant is affiliated with the Awami National Party and through them has been appointed as a member of the peace committee. The letter states the applicant attended meetings with the Pakistan Army and took part in conspiracies against the Taliban. The letter states that despite warnings the applicant has not stopped his activities and therefore the Taliban movement has decided to punish him.
  8. As noted above, [in] November 2012 the delegate refused to grant the applicant a protection visa. According to the delegate's decision record, the applicant attended a protection visa interview [in] November 2012 and repeated his written claims and added the following information: he cannot return to Karachi because it is not safe there; he cannot relocate anywhere in Pakistan because his ID card identifies him as being from Swat. His facial features clearly identify him as Pashtun; his wife has been called twice by the Taliban since he left and he will be killed by the Taliban if he returns to Pakistan.
  9. Based on the information before him, the delegate accepted the applicant was a Sunni Muslim and a Pashtun from [village] in the Swat Valley. The delegate accepted the applicant and his family were registered as internally displaced persons in December 2009 and relocated to [town] as a result of the fighting between the Taliban and the Pakistan Army. The delegate also accepted the applicant was a member of the [village] Peace Committee.
  10. However, the delegate found the applicant's involvement in the peace committee to be highly localised and found it would be reasonable and practical for the applicant to return to Pakistan and relocate outside KP province, for example to Punjab province. The delegate also found that State protection would not be withheld from the applicant for a Convention reason.
  11. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore found the applicant's fear of persecution was not well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and as a result the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk the applicant will suffer significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate refused to grant the applicant a protection visa.
  12. [In] September 2016 the applicant's representative provided a written submission to the Tribunal, dated the same day, addressing the current health of the applicant, the findings of the previous Tribunal, updated information regarding ANP supporters and Peace Committee Members, as well as submissions on relocation. The submission summarized the applicant's claims to fear both serious and significant harm on his return to Pakistan on the basis of:

His involvement with the [village] Peace Committee/Lashkar;

His association with the ANP;

The fact he has been in Australia for a significant period of time and would be a returnee from the West;

His perceived anti-Taliban political opinion;

The higher risk of generalised violence in Swat;

His current mental health; and

His inability to relocate to another area of Pakistan to avoid harm.

  1. The representative also provided a written statement from the applicant dated [in] September 2016. In that statement the applicant states that people have questioned his wife about the applicant and have also assaulting her. The applicant also refers to a recent attack in Bara Bandai. The applicant also provides information in relation to his mental health, memory problems and relocation.
  2. The applicant appeared before the Tribunal on 12 September 2016 (the first hearing) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
  3. During the first hearing the Tribunal spoke to the applicant about his medical conditions. The applicant told the Tribunal he suffered from mental stress and had trouble sleeping and was taking medication every morning and night, and that his medications affected his memory and his ability to concentrate. The Tribunal spoke to the applicant about his background, family composition, education and employment history, his activities with the [village] Peace Committee, as well as the reasons he left Pakistan and his fears of returning.
  4. The applicant told the Tribunal he feared he will be slaughtered by the Taliban if he returns to Pakistan, because he had worked with the Lashkar in 2008 and encouraged people not to co-operate with the Taliban, and with the Peace Committee in 2009 and identified members of the Taliban and the homes of Taliban members for the Pakistan Army. The Tribunal adjourned the hearing on request after the applicant began to feel distressed and unwell.
  5. The Tribunal resumed the hearing on 31 October 2016 (the second hearing). The Tribunal again spoke to the applicant about his medical conditions. The applicant told the Tribunal he had seen his psychiatrist [name] since the last hearing. The applicant's representative indicated the applicant was engaged with [name] Health for treatment and that an FOI request had been made for his medical reports. The applicant told the Tribunal he currently takes medications and was feeling well enough to speak to the Tribunal. During this hearing the Tribunal raised concerns about the applicant's credibility and the differences between the applicant's oral evidence and the information he had previously provided. At the conclusion of the hearing the Tribunal granted the applicant 21 days in which to provide any further information in support of the application, including any further medical reports or information.
  6. [In] November 2016 the representative provided a post hearing written submission dated the same date addressing the use of an Urdu interpreter with the applicant in the early stages of the application process, as well as submissions and country information in relation to access to mental health services in Pakistan, relocation, violence in Pakistan, and returnees from the West. The representative also noted they had yet to receive the applicant's medical records and requested the Tribunal not to proceed to a decision until the medical information was before the Tribunal.
  7. [In] January 2017 the representative provided a further written submission dated [in] January 2017 confirming they had received the applicant's medical records and provided copies of a relevant selection of clinical notes indicating the applicant has been diagnosed as suffering from [numerous medical conditions].
  8. The written submission notes the medical records refer to the applicant's previous hospitalisations and significant changes in mood and his [medical conditions] and that he is preoccupied with thoughts of the Taliban and the threats they pose to his safety if he returns to Pakistan. The submission also refers to the adverse effect the applicant's mental health has had on his ability to work and his inability to pay outstanding accounts to [name] Health. The representative submits the applicant has struggled to maintain employment due to his medical conditions and symptoms.
  9. The written submission states the medical evidence provided confirms the applicant has an ongoing history of mental illness and problems with sleeping, all of which would potentially affect his ability to recall events and give evidence, and demonstrates his ongoing mental health issues which stem from significant fear of harm from the Taliban. It is submitted that this evidence corroborates the evidence the applicant has given the Tribunal regarding his fear that the Taliban will target him on his return to Pakistan.
  10. The representative also submits the applicant will continue to require mental health support on his return to Pakistan, and when the applicant has been unable to access medication and support services in the past his condition has deteriorated rapidly. The submission notes support services available to the applicant are likely to be expensive, inadequate and he will face cultural barristers to access such services in Pakistan.
  11. It is submitted that returning the applicant to Pakistan, given the difficulty he will face accessing mental health services, will expose the applicant to a real risk of significant harm or serious harm. It is also submitted the applicant's mental illness will also affect his ability to relocate.
  12. The Tribunal has had the advantage of more evidence than was before the delegate or the previous Tribunals, and for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

  1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
  2. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

  1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
  2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
  3. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve 'serious harm' to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of 'serious harm' are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
  4. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
  5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of' serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
  6. Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
  7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression 'the protection of that country' in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
  8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

  1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
  2. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
  3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration -PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment 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.

FINDINGS AND REASONS

Nationality

  1. On the basis of the copy of the applicant's Pakistan passport provided to the Department, the Tribunal finds that the applicant is a national of Pakistan. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Pakistan. Therefore the Tribunal finds that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Pakistan, the Tribunal also finds that Pakistan is the applicant's "receiving country" for the purposes of s.36(2)(aa).

Refugee Criterion s.36(2)(a)

  1. While the Tribunal raised a number of credibility concerns with the applicant during the hearings, credibility concerns similar to those raised by previous Tribunals, the Tribunal also notes the recent medical information and reports on the applicant's mental health history.
  2. On the basis of that information, the Tribunal accepts the applicant suffers from [various medical conditions], and associated symptoms. The Tribunal accepts the applicant's mental illness and medications affect his memory and ability to concentrate and recall details consistently, and the Tribunal is satisfied this explains the credibility concerns raised during the hearings.
  3. The Tribunal spoke to the applicant in detail about his activities with the Lashkar and [village] Peace Committee. While hindered by his diminished ability to recall some dates and some details, the applicant was able to describe his experiences in a persuasive and straightforward manner. The Tribunal notes the applicant's claims have remained generally consistent throughout the visa application and review process, and the Tribunal is satisfied the applicant has told the truth in relation to his activities on the [village] Peace Committee and the threats from the Taliban and his fear of returning to Pakistan.
  4. Consistent with the delegate's findings, the Tribunal accepts the applicant is a Sunni Muslim and a Pashtun from [name] village in the Swat Valley, Khyber Pakhtunkhwa province in Pakistan. The Tribunal accepts the applicant and his family were internally displaced and relocated to [town] as a result of the fighting between the Taliban and the Pakistan Army, and that on his return to [village] the applicant joined the Peace Committee and assisted the Pakistan Army in identifying members of the Taliban and discouraging villagers from assisting or supporting the Taliban. The Tribunal accepts members of the [village] Peace Committee have been killed in the past. These findings are consistent with and supported by the letter from [a] Society [village] Distt: Swat Pakistan, and the media articles in relation to the killings of [name] and [Mr A] provided to the Department, which the Tribunal accepts as genuine. The Tribunal accepts the applicant has a profile in his village as having worked against the Taliban. The Tribunal accepts the applicant was threatened by the Taliban and left Pakistan in fear of his life. The Tribunal accepts the applicant's wife has been approached and assaulted by people looking for the applicant since he left Pakistan. The Tribunal accepts the applicant has an anti-Talban political opinion and the Tribunal accepts the applicant's oral evidence that despite his fear he will continue to volunteer and support the work of the peace committees if returned to Pakistan.
  5. The Tribunal has taken into consideration the Department of Foreign Affairs and Trade Country Information Report (the DFAT report ) dated 15 January 2016, and notes that report indicates that the most potent security threat in Pakistan remains the Taliban insurgency based in FATA and Khyber Pakhtunkhwa which, combined with the war on terrorism, has claimed more than 57,000 lives since 2001 in Pakistan. Militants in Swat operate under the umbrella of the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM), which has been operationally linked to the Tehrik-e-Taliban Pakistan (TTP). The country information reports and articles referred to by the representative in their written submissions including media articles indicate attacks and killings of peace committee members continued in the Swat Valley in 2014, 2015 and 2016[1].
  6. A recent article in the Friday Times reports that at least 120 target killings and other attacks of violence have been reported in Swat Valley since the completion of military operation in 2009; that the prime targets include members of the peace committees. The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that "the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces.'[2]
  7. In 2016, there have been further security incidents in the Swat Valley, with fatal attacks on VDC members, police and people with an anti-Taliban profile,[3] including separate incidents in late May 2016, where VDC members and police were assassinated in attacks in Bara Bandai and Manglore.[4]
  8. The Center for Research and Security Studies released a report for the period April - June 2016 which indicates that police officials appear to be the main target of violence in KPK, followed by political activists belonging to the ANP and the pro-government peace committee members. It states that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[5]
  9. The Tribunal is satisfied that the country information indicates that despite the military regaining control of the Swat Valley in 2009 and a subsequent reduction in the overall level of violence and conflict in the area, the Taliban continues to operate in the area and attack targets including members of peace committees and supporters of the Pakistan Army and authorities.
  10. On the evidence before it the Tribunal accepts there is a real chance the applicant will come to the adverse attention of the Taliban and its supporters in the Swat Valley and Khyber Pakhtunkhwa. Noting that members of the [village] Peace Committee have been killed in the past, and the country information noted above, the Tribunal accepts there is a real chance the applicant will suffer significant physical ill treatment and that his life will be threatened if he returns to his home village.
  11. The Tribunal accepts that if the applicant returns to his home village in the Swat Valley or elsewhere in Khyber Pakhutnkhwa now or in the foreseeable future, there is a real chance he will be targeted for serious harm by the Taliban and its supporters.
  12. The Tribunal finds the essential and significant reason for the persecution would be the applicant's anti-Taliban political opinion as required by paragraph 91R(1)(a) of the Act. The Tribunal also finds that the harm the applicant fears involves 'serious harm' as it amounts to a threat to his life, and significant physical harassment and significant physical ill-treatment as listed in paragraph 91R(2), and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).
  13. The Tribunal notes that the DFAT report states that Pakistan's army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas and a large number of people have been arrested on terrorism-related charges since the commencement of the National Action Plan in December 2014. However DFAT also states that successful prosecutions of those responsible for politically-motivated or sectarian violence are rare and (as noted by the International Crisis Group) only a small number of those arrested under the NAP belong to extremist groups. According to a December 2014 report by Al-Jazeera, the network of military checkpoints across Swat has done little to prevent the Taliban from carrying out targeted killings or to help security forces arrest those responsible. Khwaja Khan, a local political leader who is reported to be on the Taliban's hit list, claims that the attacks have occurred 'in close proximity to checkpoints' and that the response of the security forces has been ineffective.[6]
  14. A recent report issued by the United States Department of State's Overseas Security Advisory Council , states that:

Pakistani authorities have only minimal control of many areas of KP province and FATA, including the Swat Valley and North and South Waziristan. These areas offer terrorists, extremists, and militant groups a safe haven to prepare, train, and carry out attacks. The FATA and Swat Valley are lawless and should be avoided.

The presence of al-Qai'da, Islamic State (ISIL), Afghan and Pakistani Taliban elements, and other indigenous militant sectarian groups, and geographic proximity to the Afghanistan border, continue to pose a danger. Targeted attacks against government officials, property, military, law enforcement, and soft targets (educational facilities) are common. Consulate Peshawar receives reports that indicate IED strikes, targeted assassinations, and bombings throughout the region occur on a weekly basis:[7]

  1. Based on the country information the Tribunal considers the situation in the Swat Valley region remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban. While the security situation appears to have improved somewhat since 2009, it is clear that militants remain active in the area and that the response to attacks on residents by militants is limited.
  2. On the information before it the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities in the Swat Valley and Khyber-Pakhtunkhwa province does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1. Therefore the Tribunal finds that the applicant faces a real chance of persecution for reasons of his political opinion if he returns to his home in [village] or elsewhere in Khyber-Pakhtunkhwa province, now or in the reasonably foreseeable future.
  3. The Tribunal has considered relocation to a region where there is no risk of the feared persecution, away from the applicant's home village and outside the Swat Valley and Khyber-Pakhtunkhwa province, as discussed with the applicant during the hearing.
  4. As noted above, the Tribunal accepts the applicant suffers from [various medical conditions],, and associated symptoms, and has been hospitalised a number of times in Australia when his mental health has deteriorated. The Tribunal accepts the applicant's ability to work has been adversely effected by his mental illness and that the applicant has suffered financial distress and been unable to pay for his medical treatment in the past. The Tribunal accepts the applicant's mental illness is exacerbated by his fears of the Taliban and his fears and concerns for his safety if he returned to Pakistan. The Tribunal accepts the country information indicates the mental health services in Pakistan are limited[8] and the Tribunal accepts the applicant's mental health condition will deteriorate if he returned to Pakistan.
  5. The Tribunal accepts the applicant has ongoing mental health conditions that will adversely impact on his ability to relocate, including his ability to find employment and housing. The Tribunal accepts that given the applicant has been unable to work in the past when his mental health has deteriorated, it will be very difficult for him to secure work outside Swat Valley where he has no family or social supports. In these circumstances, the Tribunal does not consider it reasonable to expect the applicant to relocate himself or his family to another part of Pakistan to escape the harm he fears in [village], Swat Valley and Khyber-Pakhtunkhwa province.
  6. The Tribunal finds the applicant has a well-founded fear of persecution in his home village of [name], Swat Valley and Khyber-Pakhtunkhwa province, and that it would be not be reasonable to expect the applicant to relocate himself or his family to another part of Pakistan to escape the persecution he fears.
  7. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan now or in the reasonably foreseeable future, for the Convention reason of his political opinion.

CONCLUSION

  1. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(a).

DECISION

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




Chris Thwaites
Member
16 January 2017


[1] Dawn, Policeman killed, two others injured in Swat attack (25 May 2016), available at http://www.dawn.com/news/1260467/policeman-killed-two-others-injured-in-swat-attack; The Express Tribune, Peace Committee Member Gunned Down in Swat (2 October 2015), available at http://tribune.com.pk/story/965898/peace-committee-member-gunned-down-in-swat-3/;
The Daily Times, Peace Committee Member Gunned Down in Swat (14 September 2015), available at http://www.dailytimes.com.pk/national/14-Sep-2015/peace-committee-member-gunned-down-in-swat; The Frontier Post, Peace Committee Member Gunned Down (15 September 2015); Peshawar Tribune, Two Peace Committee Members Killed in Lower Mohmand (12 September 2015); Abdul Sami Paracha, Attacks in KP leave two councillors dead, Dawn.com (6 September 2015) available at http://www.dawn.com/news/1205231; Fazal Khaliq, 'Local Panic: Fear grips Swat after attacks in Kabal tehsil' The Express Tribune (17 September 2014), available at http://tribune.com.pk/story/763248/local-panic-fear-grips-swat-after-attacks-in-kabal-tehsil/; Fazal Khaliq, 'Taliban target local militias called peace committees in Pakistan's Swat Valley' www.upi.com (20 February 2014) available at http://www.upi.com/Top_News/Special/2014/02/20/Taliban-target-local-militias-called-peace-committees-in-Pakistans-Swat-Valley/41390394841287/; 'Three killed in attack on peace committee members', Peshawar Tribune (12 June 2014) available at http://tribune.com.pk/story/720500/silencing-dissent-three-killed-in-attack-on-peace-committee-members/;
[2] "Restoring Swat's lights", Friday Times, The, 29 July 2016, http://www.thefridaytimes.com/tft/restoring-swats-lights/

[3] See 'Target killings: An unending wave in Swat', Morning Post, 19 January 2016, available at

http://morningpost.today/eng/?p=884; 'Shangla DSP killed in Swat', 13 April 2016, Dawn, available at

http://www.dawn.com/news/1251789/shangla-dsp-shot-dead-in-swat; 'ANP leader killed in Swat',

Dawn, 11 April 2016, available at http://www.dawn.com/news/1251377/anp-leader-killed-in-swat ;

'Two policemen shot dead in Dherai', Dawn, 12 January 2016, available at

http://www.dawn.com/news/1232410/two-policemen-shot-dead

[4] See 'Village defence body member, guard shot dead', Dawn, 24 May 2016, available at

http://www.dawn.com/news/1260354; 'Policeman killed and two others injured in Swat attack', Dawn,

25 May 2016, available at http://www.dawn.com/news/1260467/policeman-killed-two-others-injured-in-swat-attack
[5] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p .18
[6] Hashim, A 2014, 'Killings target anti-Taliban leaders in Swat', Al Jazeera, 20 November <http://www.aljazeera.com/indepth/features/2014/11/pakistan-killings-target-anti-taliban-leaders-swat-201411208203415596.html.
[7] United States Department of State Overseas Security Advisory Council, 30 March 2016, 'Pakistan 2016 Crime and Safety Report: Peshawar' available at https://www.osac.gov/pages/ContentReportDetails.aspx?cid=19396
[8] WHO-AIMS Report on Mental Health System in Pakistan, http://www.who.int/mental_health/pakistan_who_aims_report.pdf; http://dailytimes.com.pk/opinion/08-Nov-16/abysmal-mental-health-conditions-in-pakistan; http://www.asianews.network/content/asia%E2%80%99s-access-mental-health-treatment-28936; http://www.asianscientist.com/2016/10/health/eiu-janssen-apac-mental-health-integration-index/; http://www.bbc.com/news/world-asia-37495538;

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