IMMIGRATION AND PROTECTION TRIBUNAL [2019] NZIPT 801535 NEW ZEALAND RŌPŪ TAKE MANENE, TAKE WHAKAMARU AOTEAROA

Appellant: DO ()

Before: S Aitchison (Member)

Counsel for the Appellant: S Lamain

Counsel for the Respondent: No Appearance

Date of Hearing: 30 May 2019

Date of Decision: 28 June 2019 ______

DECISION ______

[1] This is an appeal against a decision of a refugee and protection officer declining to grant refugee status or protected person status to the appellant, a citizen of Pakistan.

INTRODUCTION

[2] The appellant claims that Tehrik-e-Taliban Pakistan, an umbrella organisation comprised of distinct Pakistani Taliban factions (“the Taliban”) will kill him upon return to Pakistan as he made a statement criticising a terrorist attack on the Agricultural Training Institute which was published in a local newspaper in December 2017. He fears that the Taliban will also harm him because he is a long-standing member of the (“ANP”).

[3] The primary issue to be determined in this appeal is whether the appellant’s claim is credible.

[4] Given that the same claim is relied upon in respect of all limbs of the appeal, it is appropriate to record it first. 2

THE APPELLANT’S CASE

[5] The account which follows is a summary of that given by the appellant at the appeal hearing. It is assessed later.

Family background

[6] The appellant, a Pashtun of the Sunni Islamic faith, was born in the early 1970s in Y village, Swat Valley district, province (KPK), Pakistan. He has four brothers and three sisters. His parents live in Y village, together with one of the appellant’s younger brothers and his family. Another brother lives in Z city, and the appellant’s two other brothers live abroad: one in X city, and the other in W country (where he has lived since 1992). The latter brother visits his wife and children, who continue to live in Y village, once a year. The appellant’s three sisters are married and live in the Swat Valley district, in Y village, V city and U city, respectively.

[7] The appellant married his wife in 1997 and they have seven children between one-and-a-half years and 18 years of age. Prior to the appellant’s departure from Pakistan, the family lived in Y village near to the appellant’s parent’s home.

Education and employment background

[8] The appellant completed his primary and secondary school education in Z city. In 2007, he commenced a Bachelor of Arts degree in various languages through distance study at a local university, and he graduated with this degree in 2014.

[9] From the mid-1990s, the appellant was employed as a manager in an international courier company. He also took out shares in an emporium store which marketed wares to tourists and operated in a mall in U city. A decade later, the appellant established a travel agency business in partnership with one of his cousins. However, in 2013, the appellant closed his travel business when he discovered that his cousin had been misappropriating funds from the business.

[10] The same year, the appellant established another business known as ABC Ltd. He registered the business with the Pakistan Overseas Employment Promoters Association and obtained a licence with the Bureau of Immigration and Overseas Employment. This business promoted employment opportunities for to work in the Middle Eastern and Gulf countries. The appellant was 3

assisted by his older brother in W country, who had established connections with a number of businesses offering employment opportunities. Prospective employees paid the business a one-off fee to access offers of employment and assistance with visas and related advice. As the business grew, the appellant hired three employees in his office in Pakistan. Business profits enabled the appellant and his family to live comfortably, including having his children escorted to private schools by a driver in the employment of the appellant, and the appellant and his family took regular vacations abroad. Through his travels, the appellant became interested in visiting New Zealand one day.

Political background and Taliban presence in Swat

[11] In 1995, the appellant became a member of the ANP. He supported the party objectives and its strong stance against the Taliban, who had become visible in Swat from 1993 onwards. His belonging to the party was also integral to forging and maintaining business contacts.

[12] The appellant was an active member of the ANP. He attended regular meetings and was involved in successive election campaigns, including in 2009 and 2013. Because he was well-educated and a good speaker, he was invited to speak at many of these events. As a sociable, well-connected businessman, he enjoyed encouraging members of the public to join the party. He travelled throughout the Swat district and Malakand division of KPK province to attend party gatherings and meetings held in party offices and at the president’s and member’s hujras. He was frequently offered more senior positions in the party, but he declined to accept these because, as a busy businessman, he was not in a position to make a full-time commitment.

[13] From the 1990s, the appellant’s profile and involvement in the party morphed according to political and security conditions. In 2009, the appellant and his family were forced to flee Swat to Islamabad owing to deteriorating conditions. They returned later that year, following army operations to disperse the Taliban. Whereas in the 1990s, where the appellant would speak at public gatherings and meetings and proudly wear the ANP colours, by 2009, it was necessary to keep a lower profile and attend events in a more discreet manner. During this period, the ANP were unable to hold any public gatherings.

[14] The appellant witnessed the death of many ANP members and friends. One friend, AA, who was a member of the ANP provincial assembly, was killed by the 4

Taliban at his residence in 2009. Another neighbour of the appellant’s, BB, also an ANP member, was killed by the Taliban the year prior.

The Taliban attack Peshawar Agricultural Training Institute

[15] In early December 2017, after returning to his office in Y village following a work assignment in Islamabad, the appellant learned from his office manager that there had been an attack by the Taliban on a hostel at the Peshawar Agricultural Training Institute on 1 December 2017, killing nine persons and injuring 37. In response, state officials, including special forces, elite police, rapid response forces, army personnel and Peshawar police, confronted the terrorists and killed three Taliban fighters.

[16] The appellant was disturbed by this incident and reflected on the many instances where schools/institutes had been closed, and students, including his own children, had been warned not to attend school for fear of attacks by the Taliban. He recalled a serious attack on an army school in Peshawar in 2014 that killed 130 school children and the attack on a schoolgirl, . He also thought about the attacks on his friends and other members of the ANP who had lost their lives. He became very angry and resolved to make a public statement against the attack. Although he had written letters of critique in the past, his wife had dissuaded him from making these public, owing to fears for the family’s safety. However, on this particular occasion, he followed through on his intentions and contacted the bureau chief of newspaper 1 in Swat district, a paper which was distributed throughout the country. The chief asked him to send his statement, together with a photograph, through WhatsApp. The appellant did so and his condemnation of the attack and praise for the authorities’ quick response was published, together with a photograph of the appellant on the front page of the newspaper on [withheld]. The article, entitled, “[withheld]”, also identified the appellant as a prominent and active member of the ANP in Swat and a director of ABC Ltd.

[17] In taking this bold step, the appellant admits he did not fully think through the potential consequences of his actions. In the back of his mind he reassured himself that the security situation had improved “a little bit”. When his wife learned what he had done, she was very unhappy with him and scolded him that, if anything happened, it was his responsibility. After the publication, the appellant went about his business as usual, including traveling to Islamabad, where he travelled regularly to visit various embassies. 5

Travel to New Zealand

[18] On 10 December 2017, the appellant’s visitor visa application, lodged on 14 November 2017, was approved. He departed Pakistan on 25 January 2018 and arrived in New Zealand on 4 February 2018.

Calls from family and events in Pakistan

[19] On the evening of 5 February 2018, the appellant received a telephone call from his mother, who informed him that three armed Taliban fighters had entered the appellant’s family home the prior evening while she and his father were visiting his wife and children at their home address. They searched the bedrooms, looking for the appellant and threatened that they would kill him. The appellant’s wife and children begged for their lives as the Taliban assaulted the parents. The appellant’s father was struck on the leg with a rifle butt and his mother was shoved. The Taliban threatened the family that they would find the appellant and “remove his head from his body”.

[20] After the Taliban left, the appellant’s parents returned to their home and the wife and children went to her parents’ home in V city. Her father then sent them, escorted by the wife’s brother, to Islamabad. They initially stayed with some friends before finding a rental property there.

The Taliban visit the appellant’s office

[21] The appellant was also contacted by his office manager telling him that, on 5 February 2019, at approximately midday, two Taliban men entered the appellant’s business’ office and threatened staff, demanding to know the appellant’s whereabouts. The appellant told his office manager to close down the office, and it has not functioned since.

Refugee and protection claim

[22] On 22 February 2018, the appellant lodged a claim for refugee and protected person status in New Zealand.

Continued interest from Taliban

[23] In April 2018, one of the appellant’s brothers received threatening telephone calls to his mobile telephone from unidentified callers, looking for the appellant. 6

Fearing for his life, he moved around Pakistan, and approximately two to three months ago moved to X city where he currently lives. The appellant learned of this sequence of events from his elder brother, as his brother now living in X city refuses to have contact with the appellant owing to his reckless actions.

[24] In October 2018, during a return visit by appellant’s eldest brother to Pakistan, the Taliban arrived at the appellant’s eldest brother’s home, looking for the appellant. The eldest brother was in Islamabad at the time and the Taliban told the eldest brother’s family who were present that, if he did not find the appellant for them he would not be spared.

[25] While visiting Pakistan, the eldest brother assisted the appellant’s wife and children to move to a different rental address in Islamabad as the children had grown suspicious that they were being followed. The children are not attending school in Islamabad. The appellant is financially supporting them and paying for a private tutor to deliver instruction in their home.

Family contact and sentiment

[26] The appellant’s family members are angry with him as, through his actions, he has endangered their lives. The appellant has limited contact with his family, other than his wife and children. Even his elder brother, to whom he has been close, has limited involvement with him and is unlikely to ever enter into a business relationship with him again.

[27] The appellant does not consider that he would able to safely evade the Taliban anywhere in Pakistan, as once an individual becomes a target of the Taliban, they remain a target. As an example, in the case of the Balour family, the father was killed by the Taliban in 2011, and his son, through association, later in 2018.

[28] The appellant considers that, while the Taliban’s strength and capacity has been weakened over the past decade, they are still active throughout the country and able to orchestrate attacks against targeted individuals. In October 2018, they kidnapped Tahir Dawar, the superintendent of police, from Islamabad and later killed him in Afghanistan. The appellant is also aware of a friend’s relative being pursued from Swat to and killed there by the Taliban in approximately 2011/2012. Several weeks prior to the appeal hearing, the appellant heard that another friend, also a member of the ANP, had narrowly survived an attack by the Taliban during evening prayers. 7

[29] The Taliban do not only target high profile persons, they target anyone who speaks out against them.

Material and Submissions Received

[30] On 24 May 2019, counsel filed submissions with the Tribunal and country information sources.

[31] At the hearing on 30 May 2019, counsel provided a signed statement from the appellant (22 May 2019) together with a supplementary statement (30 May 2019) clarifying an issue concerning the record of his RSB interview. Counsel also produced a copy of a WhatsApp message (4 December 2017) through which the appellant sent his statement to the bureau chief of newspaper 1 for publication and a memorandum prepared on 9 May 2018 by counsel, Ms Manning, recording the appellant’s informing her of his elder brother having received threatening telephone calls on 8 April 2018, and that another brother, now living in X city, had ceased contact with him and was very angry with him.

[32] At the hearing on 30 May 2019, the Tribunal provided counsel and the appellant with country information sources and a copy of the Tribunal’s decision, DF (Pakistan) [2018] NZIPT 801367.

[33] On 12 June 2019, counsel provided the Tribunal with a further memorandum and a translated copy of a WhatsApp message sent to the appellant by his eldest brother concerning Taliban interest in him, which he forwarded to counsel on 7 October 2018.

ASSESSMENT

[34] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellant as:

(a) a refugee under the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) (section 129); and

(b) a protected person under the 1984 Convention Against Torture (section 130); and 8

(c) a protected person under the 1966 International Covenant on Civil and Political Rights (“the ICCPR”) (section 131).

[35] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.

Credibility

[36] The Taliban attack on the Peshawar Agriculture Training Institute College on 1 December 2017 is well-documented in news reports, and the RSB and the Tribunal independently verified the publication of the appellant’s critique of the attack in newspaper 1 on 5 December 2017; see “Nine Dead as Gunmen Storm Hostel of Peshawar’s Agricultural Training Institute” (1 December 2017) www.dawn.com. In its decision, the RSB did not address the issue of good faith with respect to this publication and, in such circumstances, the Tribunal has no jurisdiction under the Act to consider this issue; see CH (China) [2016] NZIPT 800881.

[37] The Tribunal is mindful that the incidents which underpin these appeals took place after the appellant lodged his visitor visa application for New Zealand and of the coincidental timing of Taliban interest in the appellant and his arrival in New Zealand. It raises the possibility that he orchestrated events to facilitate his migration. While the Tribunal holds some residual reservations on this basis, they are not such as to cause it to dismiss the appellant’s claims as being not credible on that basis alone.

[38] The RSB was concerned about inconsistencies in the appellant’s involvement in the ANP. However, on appeal, the appellant highlighted errors in the RSB interview transcript (including inaccurate recording of evidence by the officer in question and also errors by the interpreter). Accordingly, the Tribunal has no credibility concerns with respect to the appellant’s membership and activities within the party.

[39] The appellant gave a detailed account of his long-standing membership and involvement in the ANP which varied over time in accordance with fluctuating security conditions and political events. To corroborate his involvement in the ANP, he also provided photographs of himself with a prominent member of the party at a social gathering while visiting friends in London. 9

[40] Having cumulative regard to the appellant’s evidence, the Tribunal finds the appellant’s account to be credible.

Facts as found

[41] The appellant is a Pashtun male of the Sunni Muslim faith who was born in Swat district of KPK province in Pakistan in the early 1970s. His parents and five of his siblings continue to live there and two siblings live abroad. The appellant’s wife and seven children currently live in Islamabad.

[42] The appellant holds a university qualification and has operated as a well-known businessman in the province, including managing an overseas employment business. He has been a long-standing and active member of the ANP since the early 1990s. On [withheld], newspaper 1 published his views in opposition to a Taliban attack on the Peshawar Agricultural Training Institute. The newspaper included a photograph of the appellant and records his political and business connections. The Taliban responded by visiting his family home and threatening and ill-treating them in February 2018. They also visited his office looking for him in February 2018 and attempted to contact one of his brothers through threatening telephone calls in April 2018. The Taliban visited another brother’s home in the Swat district looking for the appellant while he was visiting there from abroad in October 2018.

The Refugee Convention

[43] Section 129(1) of the Act provides that:

“A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.”

[44] Article 1A(2) of the Refugee Convention provides that a refugee is a 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.”

[45] In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are: 10

(a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

(b) If the answer is yes, is there a Convention reason for that persecution?

Assessment of the Claim to Refugee Status

[46] For the purposes of refugee determination, “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection – see DS (Iran) [2016] NZIPT 800788 at [114]–[130] and [177]–[183].

[47] In determining what is meant by “well-founded” in Article 1A(2) of the Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective – see Refugee Appeal No 76044 (11 September 2008) at [57].

Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to Pakistan?

[48] The Swat district in the Malakand division of Khyber Pakhtunkhwa (KPK) province has been plagued by militant violence since the early 2000s, when Afghan Taliban settled in the north west of the country following the 2001 overthrow of the Taliban regime in Afghanistan. The relocation of Afghan Taliban served as a catalyst for several Pakistani groups with a similar ideology to develop into a federation of armed groups. By 2007, the Tehrik-e-Taliban Pakistan (TTP, referred to simply as the Taliban for the purposes of this decision), an umbrella organisation, had been formed to enable other pro-Taliban groups functioning in KPK and the Federally Administered Tribal Areas (FATA, which became part of KPK in 2018) to co-ordinate activities; see AQ (Pakistan) [2013] NZIPT 800381 at [62]–[65].

[49] Ideologically, the Taliban is Deobandi-Wahabi in sectarian orientation and its founding goals have been to implement and enforce a strict interpretation of Sharia law throughout Pakistan; to establish a united front to combat -led coalition forces in Afghanistan; and to conduct defensive jihad against Pakistani security forces. Ultimately, it aims to overthrow the Pakistani government and establish an Islamic caliphate in Pakistan; Center for International Security 11

and Cooperation, Stanford University Tehrik-i-Taliban Pakistan: At a Glance – Overview https://cisac.fsi.stanford.edu/mappingmilitants.

[50] Since its inception, the TTP and its predecessor groups have targeted any profile that stands against their stated doctrine. This includes government forces and those perceived to be acting in opposition to the Taliban. The group has orchestrated attacks in the form of suicide bombings, deployment of rockets and small arms and has targeted strategically important sites such as military installations and barracks, government compounds, police stations and intelligence agency offices. Targeted sectors have included tribal leaders, rival militants, un-Islamic locals, government and security forces, sectarian targets and secular political parties; see the discussion in AQ (Pakistan) [2013] NZIPT 800381 at [66].

[51] Of particular relevance in this case, the Taliban have targeted the ANP due to its secular ideology, support for the military and counter-insurgency operations by the security forces in the former FATA and KPK, and for its work to improve the Pakistan–Afghanistan bilateral relationship. Current estimates are that over 1,000 members of the ANP have been lost to terrorism; Australian Government Department of Foreign Affairs and Trade (DFAT) Country Information Report: Pakistan (20 February 2019) (the “DFAT report”) at p46.

[52] The Tribunal has previously discussed the targeting of the ANP by the Taliban in its decision AQ (Pakistan) [2013] NZIPT 800381 at [67]–[70] as follows:

“[67] Reporting on the TTP targeting secular political parties, IHS Jane’s states:

‘... the TTP has also launched repeated attacks targeting local secular political parties in its areas of operation, most notably in the Awami National party (ANP) – the ruling party in Khyber Pukhtoonkhwa (formerly the NWFP). In the aftermath of an attack in July 2010 in which the group killed the son of the provincial minister of information in Khyber Pukhtoonkhwa, TTP Spokesman Azam Tariq stated that it was their duty to “annihilate the ANP”, adding that the party was “not only the enemy of the Taliban, but Islam as well”. The group continued to target political parties in 2011 and 2012. The start of 2013 was no different when the TTP conducted an attack against the Muttahida Quami Movement (MQM) - a secular liberal political party with a strong base in the city of Karachi. The group claimed responsibility for an improvised explosive device (IED) attack on a rally in Karachi that killed four people, including an MQM worker, and wounded 42 others on 1 January. Speaking to local press, TTP spokesman Ehsanullah Ehsan threatened further attacks on MQM workers and leaders, and also warned the general public against participating in both MQM and ANP rallies. The TTP carried out several IED attacks targeting MQM and ANP rallies and offices in Karachi in late April in the run-up to Pakistan’s 11 May general election.’

[68] Attacks on ANP members since it came to power in KPK in 2008 are in the hundreds. In an article, ‘Battle lines drawn between Pak Taliban and Awami National Party’ Rediff News www.rediff.com (24 December 2012), it is reported that more than 550 ANP workers, including three members of Parliament, have been killed in attacks by Taliban. TTP attacks on ANP leadership and rallies are documented in this article, which include, inter alia, attacks on an ANP representative in the provincial assembly in February 2009; on the son of the provincial information minister in W town in July 2010; on ANP’s information secretary of the district in January 2011; the ANP president of the Z town district in June 2011; the ANP’s 12

executive committee member in Lower Dir in September 2011; a senior leader and former union council member in November 2011 in district; a leading politician of the ANP in Tank district in July 2012; another ANP leader in in November 2012; and provincial senior minister in December 2012. A number of attacks were also made on public rallies and during a hujra hosted by an ANP member.

[69] The SATP reports that, following the TTP killing of KPK Senior Minister Bashir Ahmed Bilour on 22 December 2012, the TTP spokesman for the Khyber Agency, Mohammad Afridi, declared that the TTP had set up a new ‘revenge wing’ that had carried out the attack. He warned that leaders of the ANP and MQM were the prime targets of this group; South Asia Terrorism Portal Khyber Pakhtunkhwa Assessment – 2013, www.satp.org. Attacks throughout 2012 included the ANP headquarters in Peshawar, the Base at Bacha Khan International Airport in Peshawar, as well as various police stations.

[70] In the lead-up to the May 2013 elections, the TTP specifically announced death threats for ANP politicians; see IHS Jane’s Intelligence Review Poll Position – Securing Pakistan’s Elections (11 April 2013). Other parties on the TTP hit list included the Pakistan People’s Party (PPP) and Muttahida Qaumi Movement (MQM). The ANP bore the brunt of pre-election violence being targeted some 37 times in nearly all provinces from which it was contesting polls. Attacks concerned political candidates, party offices and meetings; see ‘PIPS report: Awami National Party bore the brunt of pre-election violence’ www.tribune.com.pk (25 May 2013).”

[53] More recent country information indicates that the ANP remains a target for the Taliban. The Centre for Research and Security Studies (CRSS) Annual Security Report: Special Edition 2013–2018 (March 2019) (the “CRSS Special Edition report”) states at p24 that most political parties active in the country had suffered casualties from terror attacks and violence in the reporting period, with 96 fatalities for the ANP in 2013, 17 in 2014, seven in 2015, six in 2016, two in 2017 and 24 in 2018.

[54] The DFAT report records, at p46:

“In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician . Bilour was a Provincial Assembly candidate for the July 25 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via Skype. On 11 April 2016, militants killed an ANP leader in Swat, Khyber Pakhtunkhwa.”

[55] Typically, terrorist violence was a feature of the lead-in to general elections in 2018. The European Asylum Support Office (EASO) Country of Origin Information Report: Pakistan Security Situation (October 2018) (the “EASO report”) reported, at p39, that:

“Pakistan held general elections on 25 July 2018. In the run-up to these elections many violent incidents and some major attacks occurred. The Pakistan Taliban and ISKP carried out attacks against political candidates and targeted political gatherings. On 27 July 2018, PIPS [Pakistan Institute for Peace Studies] published 13

a report about the election violence. According to this report from 1 May 2018 to 25 July 2018, eighteen election-related attacks have taken place. These attacks killed 183 and injured 323….”

[56] Despite military operations and interventions by the Pakistani Army since 2006 to dismantle the Taliban and their affiliated organisations, such groups remain a significant threat. Although substantially weakened, with the number of attacks and casualties steadily declining in the past decade, they continue to orchestrate attacks throughout the country; the EASO report at p33.

[57] The Pakistan Institute for Peace Studies (PIPS) state in the forward to their report “Pakistan Security Report” (2018) 11(1) PIPS Research Journal Conflict & Peace Studies (the “PIPS report”) at p20, that a gradual decrease in terrorist attacks and casualties can visibly be seen since 2009, with the only exception of 2013 when a surge in sectarian violence contributed to an increased number of attacks and casualties. They record at p17 that there was a 29 per cent decrease in terrorist attacks in 2018 compared to 2017. They state that:

“… as many as 262 terrorist attacks took place in Pakistan in 2018, including 19 suicide and gun-and-suicide coordinated attacks. In all, 595 people lost their lives - a decline of 27 percent from those killed in such attacks in 2017 – and 1,030 others were injured in these attacks, which were launched by different militant, nationalist/insurgent and violent sectarian groups.”

[58] The CRSS Special Edition report states that violence-related casualties continued to decline in Pakistan in 2018, registering a 45 per cent drop from the previous year and an 86 per cent drop since 2013; at p7. Comparing casualties from such attacks a year prior in KPK, between 2016 and 2017, the CRSS Annual Security Report 2017 reported that violence dropped significantly from 357 casualties in 2016 to 192 in 2017; at p42.

[59] Concerning those targeted by terrorists in 2018, the PIPS report states, at p17, that amongst those killed in terrorist attacks in Pakistan in 2018 were 371 civilians, 173 personnel of security and law enforcement agencies and 51 militants. Those injured in terrorist attacks included 724 civilians, 302 security personnel and 4 militants. As many as 136 attacks, or 52 per cent of the total terrorist attacks reported in 2018 struck security forces and law-enforcement agencies across Pakistan. The highest number of casualties (218 killed and 394 injured) was caused in 24 attacks targeting political leaders and workers. Civilians were the apparent targets of 47 attacks (approximately 18 per cent of the total attacks). 14

[60] The PIPS report expresses certain optimism built around the statistical decline in terrorist incidents, with an increased sense of security manifested in local investors broadening prospects for foreign investment and tourism; the PIPS report forward; see also “Pakistan’s Swat Valley Striving to Return to its Former Glory” France 24 (2 October 2017); S Anwar Shah “In Swat, a Tourism Boom as Security Situation Improves” News Lens (16 September 2017). However, the PIPS report cautions that “these plummeting numbers do not suggest, in any way, that the threat of terrorism has been completely eliminated”; the PIPS report forward. It reminds that the records of attacks still indicate that security forces and law enforcement agencies must maintain a high level of vigilance.

[61] Concerning the ability of the state to protect individuals against such incidents, the United States Department of State Country Reports on Human Rights Practices for 2018: Pakistan (13 March 2019) at p2–3 states that in 2018 the military, police and law enforcement agencies carried out significant campaigns against militant and terrorist groups. However, violence and social and religious intolerance by militant organizations continued to be committed and contributed to a culture of lawlessness.

Application to the facts

[62] The appellant has a profile with the Taliban as an opponent, who has made a public statement against their attack on the Peshawar Agricultural Training Institute, which was published in newspaper 1 on [withheld]. The article, which included a photograph of him, identified him as an ANP member and businessman. Such profile is compounded by his long-standing membership of the ANP. His profile places him at risk of being arbitrarily deprived of his life by Taliban in violation of Article 4 of the ICCPR. The Taliban have already made attempts to locate him by visiting his family home and office in February 2018; contacting one of his brothers by mobile telephone in April 2018; and visiting another brother’s family home in October 2018. The Tribunal is satisfied that there is a real chance that, should the appellant return to Swat district in KPK, the Taliban will locate him and subject him to serious harm.

[63] Having regard to the above country information, the Tribunal is not satisfied that state protection is available to the appellant against the threat posed to him by the Taliban in KPK region. The Pakistani state are unable to offer him effective protection in KPK so as to reduce the risk of him being arbitrarily killed by the Taliban 15

to below the real chance threshold. It follows that his fear of being persecuted in his local area is well-founded.

Is there a Convention reason for the persecution?

[64] The reason for harm anticipated by the appellant in the KPK region would be for reasons of political opinion.

Internal Protection Alternative (IPA)

[65] However, the protection afforded by the Refugee Convention is not available to the appellant if meaningful protection is available to him in a part of the country other than KPK. The approach to the IPA was articulated in Refugee Appeal No 76044 (11 September 2008) where the contours of what constituted ‘meaningful’ domestic protection under an IPA analysis were mapped. The Authority stated, at [178], that the following criteria were to be applied:

(a) That the proposed internal protection alternative is accessible to the individual. This requires that the access be practical, safe and legal.

(b) That in the proposed site of internal protection there is no risk of being persecuted for a Convention reason.

(c) That in the proposed site of internal protection there are no new risks of being persecuted or of being exposed to other forms of serious harm or of refoulement.

(d) That in the proposed site of internal protection basic norms of civil, political and socio-economic rights will be provided by the State. In this inquiry reference is to be made to the human rights standards suggested by the Refugee Convention itself.

[66] At the present time, the appellant’s family is living in a small village on the outskirts of Islamabad. The IPA will be assessed against this town and against Islamabad more generally as part of Islamabad Capital Territory.

[67] Islamabad Capital Territory is located in the north of Pakistan between KPK province and Punjab and includes the capital of Pakistan, Islamabad. It hosts a population of some two million, comprising different ethnic backgrounds, including Punjabi, Pashtun, Sindhi and -speaking people; the EASO report at p84. 16

[68] The Tribunal is satisfied that the appellant would be able to practically, safely and legally access Islamabad. He has travelled there regularly in the course of his business interactions, and he would be able to reunite with his wife and children at their current shared address. However, for reasons which follow, the Tribunal is not satisfied that, in the proposed site of internal protection, there is no risk of his being persecuted for a Convention reason.

[69] While the capacity of Taliban has been substantially weakened, they consistently carry out attacks against persons of interest, even years after an individual becomes of interest to them. Further, although Islamabad experiences lower levels of terrorist violence in absolute terms and relative to other parts of the country, such as KPK, the Taliban have demonstrated that they have capacity to strike throughout the country, including in the capital. According to the EASO report at pp85–86:

“Background of the conflict and actors in Islamabad Capital Territory

In 2017, PIPS mentioned that ‘terrorist attacks’ in the region were carried out by LJA and unidentified militants. At the end of September 2017, unidentified persons have put up an Islamic State flag on Islamabad's main road, indicating the presence of IS.

According to a report by OSAC published on 21 May 2018, the level of security in Islamabad is higher than in other regions. Still, the presence of Pakistani government buildings, government officials and foreigners make the region a ‘high profile target for terrorist attacks’. In January 2018, security officials warned for potential attacks against police personnel and foreigners in some areas of Islamabad Capital Territory. Security measures by the Islamabad police have been installed at public places, places of worship and other important buildings around Eid-ul-Fitr 2018.

Description of recent security trends

The PIPS report of 2017 mentions three ‘terrorist attacks’ in this region in 2017. This is the same number as in 2016. Two of these attacks were sectarian-related and targeted ‘high profile’ members of the Shia community. Unidentified militants also attacked a news reporter in the capital.

For the first half of 2018, PIPS recorded not a single terrorist attack in Islamabad Capital Territory.

Impact of the violence on the civilian population

In 2017, the annual security report of CRSS reported 16 fatalities from violence in Islamabad Capital Territory. Among these fatalities were 12 civilians, 3 security officials, and 1 criminal. Violent clashes between the police and supporters of Khadim Hussain Rizvi broke out in Islamabad in November 2017. At least six persons were killed during these clashes.

According to data in CRSS’ the first and second quarter analysis report of 2018, 10 casualties (8 fatalities, 2 injured) were counted. In the first six months of 2018, SATP did not observe any fatalities from violence in this region….” 17

[70] The Tribunal considers that, through his profile as a long-standing member of the ANP, and as a businessman (either through past or future endeavours), the appellant’s presence in Islamabad will, in time, become known to Taliban. The appellant has strong inter-personal, political and business associations and networks and has long practiced as a successful businessman. He has a family to support and he would need to return to employment in order to maintain an adequate standard of living for his family. He will no doubt rely on his experience and skill as a businessman to do so, and it is likely that the Taliban will locate him through such, or other, means. Although his former business premise was located in the Swat district, it was necessary for him to travel to Islamabad in the course of his business and to operate through networks abroad. In the past, his employment, business and personal details were registered and recorded on online databases. Any future business he operates may assume a similar public profile. In time, there is a real chance that his presence and location in Islamabad would become known to Taliban. It is also likely that he will resume his ANP activities and involvement. He cannot be expected to exercise discretion and forego his rights to freedom of expression, and to work in order to maintain an adequate standard of living for himself and his family, as found in Articles 19 of the ICCPR and Articles 6 and 25 of the 1966 International Covenant on Economic, Social and Cultural Rights; see BI (Afghanistan) [2018] NZIPT 801220.

[71] Having regard to the above, and the particular characteristics of the appellant, the Tribunal considers that there is a real chance of the appellant being subjected to serious harm at the hands of Taliban in Islamabad Capital Territory in violation of his right to be free from arbitrary deprivation of his life.

Summary of conclusions on the Internal Protection Alternative

[72] For these reasons, the Tribunal is satisfied that the appellant has no meaningful internal protection alternative available to him in Islamabad or elsewhere in the country.

Conclusion on Claim to Refugee Status

[73] For the reasons mentioned above, the Tribunal finds the appellant is a refugee within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is recognised. 18

The Convention Against Torture

[74] Section 130(1) of the Act provides that:

“A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

Assessment of the Claim under Convention Against Torture

[75] Section 130(5) of the Act provides that torture has the same meaning as in the Convention Against Torture, Article 1(1) of which states that torture is:

“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[76] The appellant has been recognised as a refugee. In accordance with New Zealand’s obligations under the Refugee Convention and by virtue of section 129(2) of the Act (the exceptions to which do not apply), he cannot be deported from New Zealand. Accordingly, the question of whether there are substantial grounds for believing that he would be in danger of being subjected to torture if deported from New Zealand does not arise. He is not a person requiring protection under the Convention Against Torture. He is not a protected person within the meaning of section 130(1) of the Act.

The ICCPR

[77] Section 131 of the Act provides that:

“(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

...

(6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment.”

Assessment of the Claim under the ICCPR

[78] For the reasons already given, the appellant cannot be deported from New Zealand. Accordingly, the question of whether there are substantial grounds 19

for believing that he would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand does not arise. The appellant is not a person requiring protection under the ICCPR. He is not a protected person within the meaning of section 131(1) of the Act.

CONCLUSION

[79] For the foregoing reasons, the Tribunal finds that the appellant:

(a) is a refugee within the meaning of the Refugee Convention;

(a) is not a protected person within the meaning of the Convention Against Torture;

(b) is not a protected person within the meaning of the Covenant on Civil and Political Rights.

[80] The appeal is allowed.

Order as to Depersonalised Research Copy

[81] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellant’s name and any particulars likely to lead to the identification of the appellant.

“S Aitchison” S Aitchison Member

Certified to be the Research Copy released for publication.

S Aitchison Member