1406411 (Refugee)

[2015] AATA 3605

1406411 (Refugee) [2015] AATA 3605 (5 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1406411

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:5 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 November 2015 at 11:04am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Pakistan, applied for the visas [in] May 2013 and the delegate refused to grant the visas [in] March 2014.

3. The applicants appeared before the Tribunal on 3 September 2014 and 16 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings.

5. The Tribunal notes that on 5 August 2015 this case was reconstituted to a different Member.  In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.422(3) of the Act.

6. The issues in this case is whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention on return to Pakistan, and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.  An extract of the relevant law is attached. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and nationality

8. The delegate had no issues with the applicants’ nationalities, noting in the decision record that the applicants provided to the Department copies of their Pakistani passports.  The Tribunal is satisfied that they are nationals of Pakistan and assesses their protection claims against Pakistan as their country of nationality for refugee purposes and receiving country for complementary protection purposes accordingly.

9. The second named applicant is the wife of the first name applicant and confirmed at the Tribunal hearing that she is relying on her husband’s protection claims in respect of the review application.

10. The Tribunal accepts based on the first named applicant’s (hereafter the applicant) identity documents and confirmed at the hearing that his ethnicity is Mohajir and that his first language is Urdu.  It accepts that he originates from Karachi in Sindh province and has returned there twice for short term visits – in 2010 and 2012 – since moving to Australia to study in 2009.  It accepts that he lived his entire life in [suburb] – a relatively affluent area of Karachi – and that his family home remains there, uninhabited.  It accepts that his father works in [Country 1] and his mother and sister also live there.  It accepts that the applicant’s [sister] is married and lives with her husband in Karachi. 

    Refugee assessment

11. It has been submitted that the applicant fears serious harm on return to Pakistan from unknown groups on various grounds including the fact that he is Urdu speaking, Mohajir, wealthy with perceived Western interests and because he refused to pay extortion money and has been identified as a victim of extortion.

    Extortion and kidnapping attempt - Karachi

12. The primary reason the applicant fears returning to Pakistan relates to an alleged extortion attempt and attempted abduction he purportedly experienced whilst visiting his home [suburb] in Karachi in November 2012.  In his oral evidence about this incident the applicant told the Tribunal that at around 9pm [in] November 2012, whilst driving home from visiting his father in hospital, a car containing four men blocked his path, only metres from his house.  Two of the men jumped out of the car, one punched the applicant in the face (his windscreen was down) before dragging him to the ground. There the applicant heard gunshots – he found out subsequently they came from a security guard on top of a nearby house – which caused the men to retreat to their car and flee, after firing two shots in the applicant’s direction.  One of the bullets shattered the applicant’s car windscreen and the other hit one of his car tyres.  The applicant ran home, banged on his door – having left his keys in the ignition – and told his wife who answered the door what had happened.  He then rang a close friend who went to the applicant’s house shortly afterwards.  The applicant and his friend then reported the matter to the police who issued a First Information Report (FIR) (a copy of which the applicant provided to the Department).  The applicant’s uncle collected him from the police station (and his wife from the family home) and they stayed with their uncle in a different area of Karachi for two days until returning to Australia. (The applicant said his father, released from hospital the next day – [in] November 2012 - also went direct to his uncle’s house with the applicant’s mother after they heard about the incident, before returning to [Country 1] four days later).  Neither the applicant nor his wife (nor his parents or sister) has returned to Pakistan since this incident.  The family home in Karachi is currently empty and locked.

13. The applicant told the Tribunal that the attempted kidnapping was preceded by him receiving two notes at his house - the first [in] November 2012 and the second [later in] November 2012.  The first note was discovered by one of the family’s servants in the letterbox.  It was not addressed to anyone in particular but stated – handwritten in Urdu – that they knew of their activities and demanded 35 lakhs (3,500,000[1] rupees) in payment (a contact phone number was provided).  The applicant showed the note to his wife but then threw it out, thinking it was a joke.  However two days later the applicant and his wife, who were home alone because his parents and sister had gone to a relatives’ house for dinner, heard gun shots at the front of the house around 7pm.  The applicant’s wife said she saw someone outside the gate.  The applicant went outside and found another note attached to the gate which warned them not to be smart and demanded 50 lakhs (5,000,000[2] rupees), a substantial increase from the amount on the note two days before.  Taking this note seriously, the applicant rang his father who came home immediately.  They discussed paying the money, but did not have that much cash.  Stressed, his father woke early the following morning with [health condition] and the applicant drove him to hospital.  It was when the applicant was returning home from hospital that evening that the attempted kidnapping occurred and the applicant believes these incidences were linked.

    [1] AUD46,300 as at 26 October 2015,

    [2] AUD66,143 as at 26 October 2015, >

    When asked who he thinks were behind the extortion and kidnapping attempt, the applicant said there are heaps of gangs in Karachi, and he also mentioned the Tehreek-e-Taliban (TTP).  He said it is difficult to know who is behind the attacks exactly because many times people who undertake the kidnapping sell the victims to other groups for more money.  The applicant referred to a number of news clippings about this phenomenon and YouTube videos.

14. The Tribunal had some doubts initially about the applicant’s claims given the timing of the alleged extortion and kidnapping attempt in November 2012 (around the time his – unsuccessful - review of the Department’s decision to grant him a skilled visa was finalised) and because of the delay in applying of the protection visa. Nonetheless, at the hearing the applicant provided a plausible explanation for the delay.  Further, the applicant did not appear to embellish his claims or attempt to provide explanations that he was unaware of.  He provided a level of detail about this incident in Pakistan that was consistent with his evidence before the Department and over the course of two Tribunal hearings – almost a year apart – and corroborated by his wife’s detailed and spontaneous oral evidence, which would have been difficult to manufacture.  The Tribunal therefore accepts that in November 2012 the applicant was the victim of extortion and kidnapping attempt whilst visiting Karachi as claimed.  It is unclear who was responsible, or their primary motivations, however country information indicates that kidnapping for ransom and extortion for financial gain is widely perpetrated by both criminal gangs and militant groups which operate out of the country’s main cities, including Karachi.  There are also reports about the evolving kidnapping tactics of the TTP, with increasing levels of co-operation alleged between the terrorist groups and criminal gangs, with the Taliban offering the protection to kidnapping gangs in return for a cut of the proceeds[3].  The Tribunal therefore accepts as possible that militant groups such as the TTP or others linked to such groups were behind the attempted extortion and kidnapping of the applicant, as submitted.

    [3] See for example George Potter, ‘Pakistan: The Kidnapping Threat Diversifies and Grows’, Credit, Political & Security Risk, Market Report, May 2015 pp. 4-5 (submitted by the representative)

15. In reaching this conclusion the Tribunal has had regard to the FIR provided to the Department and copies of medical documents evidencing the applicant’s father’s time in hospital in Karachi [in] November 2012 provided to the Tribunal.

    Fear of persecution in Karachi in the foreseeable future 

16. Given this finding the Tribunal has considered if the applicant faces a real chance of serious harm from the TTP or other groups for a Convention reason on return to Karachi in the reasonably foreseeable future. 

17. It has been submitted[4] on the applicant’s behalf that he fears harm from these groups for reasons of his membership of a particular social group variously described[5] - often conflating his ethnicity (Mohajir) and status as a wealthy Pakistani. In short, it has been argued that the applicant is perceived as wealthy and educated because he is a Mohajir (Urdu speaking) Pakistani and has been targeted for extortion in the past.  At hearing the applicant stated that most of the victims of targeted killings in Karachi are Mohajirs, some who are killed brutally.  He said there are many factors behind the killings, including the fact that most of the time they are wealthy, or they have immigrated from India, or because of the hate toward Urdu-speakers.  He added that people who belong to the Balochi ethnic group do not like Mohajirs and he considers they are behind many of the kidnappings.  He referred to media reports and videos documenting such violence and extortion and in a post-hearing submission the representative summarised a number of these articles and videos and referenced their links, which the Tribunal has had regard to. 

    [4] In written submissions provided by the representative to the Department and Tribunal dated 8 May 2013, 16 December 2013, 27 August 2014 and 11 September 2015.

    [5] For example, ‘wealthy Pakistanis’, ‘people fleeing criminal gangs’, ‘perception as a wealthy, Mohajir (Urdu speaking) Pakstani’, ‘a person who has refused to pay extortion money to a criminal gang’, ‘Mohajirs, Urdu speaking, wealthy Pakistanis with perceived Western interests who have refused to pay extortion money and have been identified as victims of extortion’, ‘wealthy Mohajirs with perceived Western interests’, ‘those who have been subjected to extortion attempts’, ‘Urdu speaking wealthy Pakistani who have refused to pay extortion money’, ‘Mohajirs’

18. In the applicant’s statutory declarations[6] to the Department and Tribunal which set out his protection claims, he states, among other things, that extortion gangs in Karachi (and Pakistan) target people who are perceived to be wealthy (and professionals) and some of the extortion and kidnapping activities of these extortion gangs are linked to the TTP.  He submits further that the practice of targeting those perceived to be wealthy in his [suburb] and other areas of Karachi is rife and there are violent consequences for those who refuse or who report to the police (as in the applicant’s case). In his statutory declaration to the Tribunal the applicant states that he is fearful of returning to Pakistan because he lodged an FIR. 

    [6] Dated 1 May 2013 and 25 August 2014 

19. It is submitted further that the applicant would be vulnerable to further extortion attempts because, in addition to being Urdu-speaking and wealthy, he has returned from a Western country where he studied, which contributes to the perception of wealth. 

20. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

21. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

22. The Tribunal notes that Mohajirs are a recognised ethnic group, estimated to comprise 7.5 per cent of Pakistan’s population.  The Mohajir[7] population in Pakistan is primarily located in Karachi and Hyderabad and has a limited presence elsewhere in Pakistan.[8] The population of Karachi is believed to be[9] 55 per cent Mohajir, 14 per cent Punjabi, 9 per cent Pashtun, 7 per cent Sindhi, 4 per cent Balochi and 12 per cent others.[10]

    [7] Mohajirs are Urdu speaking migrants from northern India who first arrived in the 1940s-50s; this was the first and largest wave of migration in Pakistani history.

    [8] Huma Yusuf and Syed Shoaib Hasan 2015, Conflict Dynamics in Sindh, United States Institute of Peace, 26 January, pp20,< <CISEC96CF169>

    [9] Estimates vary as the last official census was in 1998.

    [10] Pak Institute for Peace Studies 2009, Profiling the Violence in Karachi, 1 July, pp.3,< >

    In this case the Tribunal considers that a particular social group can be defined as ‘wealthy Mohajirs’. All of the tests outlined in Applicant S are satisfied. In relation to the first and second limb, the common characteristic is the fact of being wealthy, not the shared fear of persecution. In relation to the third limb, the Tribunal has formed the view that wealthy Mohajirs have a characteristic or attribute that distinguishes them from society at large. The Tribunal is therefore satisfied that ‘wealthy Mohajirs’ constitute a particular social group for the purposes of the Convention and the Act.  Further, the Tribunal is satisfied on the basis of the applicant’s identity documents and given he speaks fluent Urdu that he is Mohajir.  The Tribunal is also satisfied that he and his family are relatively wealthy, or at the very least perceived to be. At hearing the applicant said in Pakistan if someone owns a house in a large area, has two cars, eats well and has servants and drivers - as the applicant’s family do - they are considered wealthy.  He said his father has worked as [occupation] in [Country 1] since 2001 and provided to the Tribunal translated copy of his father’s [Country 1] resident permit as evidence and the Tribunal accepts that is the case. 

23. The Tribunal has considered independent country information (including extracts and references from a variety of sources about violence in Karachi for example submitted by the representative to the Tribunal) to assess whether the applicant’s fear of persecution on return to Karachi from the TTP or other ‘unknown groups’ on the basis of his membership of a particular social group of ‘wealthy Mohajirs’ is well-founded.

24. As discussed at hearing, the contention that Mohajirs are targeted solely on the basis of their ethnicity or linguistic is not supported by country information[11] and the Tribunal does not accept that the applicant would face a real chance of serious harm from groups such as the TTP on the basis of his Mohajir ethnicity alone.  Nonetheless, country information indicates that violence in Karachi is multifaceted and that political, ethnic, sectarian or criminal motivations are not necessarily mutually exclusive.[12]

    [11] There is no specific mention of Mohajirs being persecuted or at particular risk in Australia’s Department of Foreign Affairs and Trade (DFAT) 14 April 2015 Country Report on Pakistan  and reports located by the Department’s Country of Origin Information Services (COIS) in February 2015 have not described targeting of Urdu speaking Mohajirs as solely based on ethnic or linguistic grounds but as part of a wider, more complex and volatile political environment in Karachi. (CI50209150859114 – Karachi – MQM – Mohajir, 18 February 2015) 

    [12] Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, p. 7, 8 < Pak Institute for Peace Studies 2013, Elections 2013: Violence against Political Parties, Candidates and Voters, May, pp.4,8,10 < > CIS25562>

25. The history and prevalence of violence in Karachi is well-documented.  Statistics from the Pak Institute for Peace Studies (PIPS) show that Karachi is disproportionately affected by ethno-political violence, accounting for 82 per cent of incidents across the country in 2014.[13] During the 2013 general elections, Karachi was also most affected by terrorist attacks on political targets as well as other attacks and clashes involving political leaders, workers, candidates and supporters.[14] [A source] also noted [(the applicant’s suburb)] as a flashpoint for the years 2013 and 2014.[15] Armed wings of major political parties including the Mohajir Muttahida Quami Movement (MQM), Pakistan People’s Party (PPP) and Awami National Party (ANP) as well as the militant group Tehreek-e-Taliban Pakistan (TTP) are known agents of violent and criminal acts[16] in battles for territorial domination and control over constituencies.[17] 

    [13] Pak Institute for Peace Studies 2015, Pakistan Security Report 2014, January, pp.9, 10 < CISEC96CF1254> Pak Institute for Peace Studies 2013, Elections 2013: Violence against Political Parties, Candidates and Voters, May, pp.1,2, 4,7, 8, 9 < >CIS25562>

    [14] Pak Institute for Peace Studies 2013, Elections 2013: Violence against Political Parties, Candidates and Voters, May, pp.2 < > CIS25562>

    [15] [Information deleted]. 

    [16] Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, p. 3 < CIS24252 > Pak Institute for Peace Studies 2013, Elections 2013: Violence against Political Parties, Candidates and Voters, May, pp.1,2, 4,7, 8, 9 < > CIS25562>

    [17] Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, p. 7, 8, 10, 11 < CIS24252 > Pak Institute for Peace Studies 2009, Profiling the Violence in Karachi, 1 July, pp.7,< <CIS23983>

1. A 2014 Wall Street Journal article submitted by the representative states that, according to security officials, the growing factionalisation within the Pakistani Taliban has spurred a rise in kidnappings of wealthy businessmen and influential figures.  Further, the article reports that whilst Karachi has long been a notorious centre for kidnaping, these crimes are now increasingly being committed by Taliban factions or criminals they subcontract[18]. 

   [18] The Wall Street Journal, Splintering of Taliban Fuels Spate of Kidnapping in Pakistan, July 30, 2014

2. A more recent article assessing risk in Pakistan including Karachi (also submitted by the representative) highlights the increasing cooperation between terrorist groups and criminals which expands the reach of the kidnapping threat in Pakistan.  Specifically in relation to Karachi it is reported that:

   ...In December 2014, Karachi police statistics revealed a 48% increase in kidnap for ransom cases for 2014 compared to the previous year. More kidnaps were reported in the city compared to any other, and it now accounts for 12% of all Pakistani kidnap cases, according to Control Risks’ Pakistan country profile[19].

   [19] Potter, George, Pakistan: The Kidnapping Threat Diversifies and Grows, Credit, Political & Security Risk, Market Report, May 2015 pp. 4-5.

3. The article also noted vast under-reporting of incidents. 

4. There has been a reported improvement in the security situation in Karachi recently, coinciding with ongoing paramilitary Rangers-led operations, targeting a range of violent groups, including those linked to political parties, sectarian organisations and criminal gangs.  However, analysts such as the International Crisis Group (ICG) are not satisfied that the improvements are long-term and are concerned that reliance on paramilitary entities to enforce the law has other negative effects, such as sidelining the police.  In ICG’s recent report on Pakistan it is stated that:

   The numbers of sectarian, gang-related and other targeted killings may have declined, but this is more likely the result of violent extremists, extortionists and other criminals keeping a low profile than the disruption or dismantling of their networks.  Police, activists and other civil society stakeholders in Karachi believe that once the operation is over, the violence will likely resume[20].

   [20] International Crisis Group, Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls,  Asia Report No. 271, 22 July 2015, p.22

5. In Australia’s Department of Foreign Affairs and Trade’s (DFAT) most recent country report on Pakistan it is reported that militant groups remain active as follows:

   Open sources also suggest senior members of the Afghan Taliban have relocated to Karachi. Despite Pakistani governments’ repeated bans on militant groups, they remain active across Pakistan, particularly in Karachi, Quetta and southern and central Punjab[21]. [Tribunal emphasis]

   [21] DFAT Country Report Pakistan, 14 April 2015, at 2.29

6. Taking into account the applicant’s particular circumstances, and country information set out above about the prevalence of extortion, kidnapping for ransom, and continued activity of militant groups such as the TTP in Karachi (despite some recent improvements in the security situation in Karachi), the Tribunal considers the applicant, who it accepts has previously been the victim of an extortion and kidnapping attempt possibly by the TTP in Karachi, is vulnerable to being targeted by the TTP or others for similar reasons on return.  If so, the Tribunal finds that there is a real chance that he would suffer serious harm, as per s.91R(2) amounting to persecution if he were to return to Karachi now or in the reasonably foreseeable future.  It finds that the essential and significant reason is the Convention reason of his membership of a particular social group of ‘wealthy Mohajirs’ and that the conduct the applicant fears would be systematic and discriminatory. 

   Availability of state protection in Karachi

7. In this case, the harm that the applicant fears from the TTP and other extremist groups is from non-state agents and the applicant claims that the Pakistani authorities cannot and will not protect him from that harm. 

8. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

9. The representative submits, among other things, that the extent of criminal activity (and resultant death and harm) and volume of targeted attacks in Karachi, and the inability of the authorities to curb the attacks, demonstrates that they are not in a position to protect the applicant.  She submits that the involvement of the TTP in criminal activity and targeted attacks in Karachi is of concern and highlights the limitations of law enforcement.   Further, there are reports of corruption, and the representative referred to reports of police officers committing extortion offences, using their position and the unstable situation in Karachi to gain economically.  It is submitted that the authorities have been unable to regulate corruption, extortion and kidnapping which occurs in all areas of Pakistan.

10. At the Tribunal hearing the applicant said the police only protect those who pay and referred to the fact that although he lodged a FIR about the attempted kidnapping there was no follow up.

11. The Tribunal has had regard to these submissions and the applicant’s oral evidence about the inadequacy of state protection. DFAT in its latest report on Pakistan indicates that whilst the country’s laws and Constitution provide for state protection of people’s property, lives and religious beliefs and places, “state protection can be limited by a general lack of resources and, in some cases, political will”. It is reported by DFAT that Pakistani paramilitary forces, who regularly conduct counter-insurgency operations, have been deployed frequently to enforce civil order in major urban centres. DFAT also report that despite a relatively high number or arrests (of militants and members of radical organisation in 2014), successful prosecutions of those responsible for politically-motivated or sectarian attacks are rare.[22]

    [22] DFAT Country Report Pakistan, 14 April 2015 at 5.1 - 5.2

12. The failure of the state to curb Taliban-linked kidnapping in Karachi is highlighted in a May 2015 Credit, Political & Security Risk article which states that:

    Despite governmental efforts to combat the spate of kidnappings in the city (Karachi), limited progress has been made. Prime Minister Nawaz Sharif launched a security operation in Karachi in September, hoping to bring law and order to the city given its value as financial centre and major port.  However, the offensive has failed to curb Taliban-linked kidnapping.  ‘These elements remain out of control,’ said Farooq Awan, senior superintendent of Karachi’s special investigations unit[23]. 

    [23] Potter, George, Pakistan: The Kidnapping Threat Diversifies and Grows, Credit, Political & Security Risk, Market Report, May 2015 p4-5.

13. Whilst acknowledging that there has been some improvement in the security situation in Karachi recently as set out above, given this information indicating that the authorities in Pakistan are still struggling to contain militant (and sectarian) violence, including kidnappings for ransom and extortion, the Tribunal is not satisfied that the state of Pakistan can meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of his membership of a particular social group of ‘wealthy Mohajirs’ if he returns to his home in Karachi, now or in the reasonably foreseeable future.

    Relocation

14. The Tribunal has considered if the applicant could safely and reasonably relocate to another area of Pakistan to avoid the harm he fears from non-state actors in Karachi. 

15. In his statutory declaration to the Tribunal the applicant sates that targeted extortion and killing is widespread all over Pakistan and he feels he could not safely relocate now that he has been targeted, given the violent consequences for not paying (the extortion demands). 

16. At hearing the applicant said it would be unsafe and very difficult to survive if he had to relocate to another area in Pakistan.  Specifically he said that the gangs he fears have links everywhere; he has submitted articles referring to the situation in Lahore and Islamabad; the TTP can detect a person – especially a Mohajir – easily, especially if he shows his ID when renting a house for example; he does not have any relatives or friends elsewhere in Pakistan; and that there are not many Urdu speakers in such areas and they speak their own languages which he is not familiar with.

17. The representative submitted in writing and orally that the applicant cannot reasonably live safely and free from a risk of serious harm by relocating elsewhere in Pakistan, for the following main reasons:

    ·As a Mohajir the applicant would find it difficult to relocate, being perceived as a distinct and separate social group and discriminated against throughout the country as a result (reference is made to country information from a variety of sources). 

    ·Mohajirs are considered prosperous as a consequence of their membership of this particular social group, and it is for this reason the applicant has been and will be targeted by extortionists; he is therefore at greater risk of harm than the general population.

    ·Mohajirs are concentrated mainly in Karachi, where the applicant and his family have always lived; the applicant would be identifiable throughout Pakistan because he speaks Urdu and because of his appearance; Mohair’s are characterised generally by society as being wealthy and educated; the applicant does not have any support networks outside Karachi; and there is a concern that he will face discrimination in terms of employment and other essential aspects of living as a Mohajir.

    ·The applicant and his family would remain at risk of extortion even if they relocated to other areas of Pakistan; incidences of extortion and kidnapping are not restricted to Karachi with reports of similar crimes in Islamabad and Rawalpindi, among other areas; ISIL and other terrorist organisations have infiltrated Pakistan and the applicant would not be safe from threats of extortion and attack anywhere, given his status as a wealthy Mohajir; the applicant is a target for the TTP because he has refused to pay them money in previous extortion attempts; he fears he would be hunted down on arrival in Pakistan, given extensive connections and informants the TTP have around the country (country information from a variety of sources has been referred to about, for example the strength of the TTP’s communication network throughout Pakistan, and of targeted killings throughout Pakistan by the TTP for those who refused to pay ransom money).

    ·It would not be reasonable for the applicant – who is educated and from an urban area - to relocate to a rural area with no networks and language barriers. 

    ·In a January 2014 report the ICG[24] indicate that provincial capitals remain attractive for militant and criminal networks to raise money, recruit foot soldiers and attack ethnic rivals, sectarian minorities and state institutions. 

    [24] International Crisis Group, Policing Urban Violence in Pakistan, Asia Report No.255, 23 January 2014, p.42

18. The Tribunal has had regard to these submissions and the country information contained within them, the applicant’s concerns articulated in writing and at hearing, and what the Tribunal accepts of the applicant’s particular profile and circumstances. 

19. The Tribunal notes DFAT in their April 2015 report state that ‘urban centres tend to be more secure than urban areas.’[25] Nonetheless in this case the Tribunal accepts – for reasons set out above - that the perpetrators of the harm the applicant fears are the TTP, who exist nationally, and country information indicates that kidnapping and extortion occur in other urban areas in Pakistan, for example Islamabad, as submitted.  The Tribunal accepts that the applicant as a wealthy (Urdu speaking) Mohajir would be easily recognisable as such in other areas of Pakistan and there is more than a remote chance that he may be targeted for extortion, kidnapping or other forms of serious harm in other areas of Pakistan by groups such as the TTP on this basis.   Weighing up these considerations the Tribunal does not find that relocation is a safe option in the applicant’s case.

    [25] DFAT Country Report Pakistan, 14 April 2015 at 2.25

20. For reasons set out above the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group of ‘wealthy Mohajirs’, should he return to Pakistan now or in the reasonably foreseeable future.

21. Given the Tribunal’s findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions. 

    CONCLUSION

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

23. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that second named applicant is the first named applicant’s wife and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

24. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Nicole Burns
    Member

    Attachment – Summary of Relevant Law

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

    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’).

    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.

    
    

Pak Institute for Peace Studies 2009, Profiling the Violence in Karachi, 1 July, pp.5, 7, <CIS23983>