1418483 (Refugee)

[2016] AATA 3975

1418483 (Refugee) [2016] AATA 3975 (7 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418483

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:7 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 June 2016 at 3:03pm

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

BACKGROUND AND APPLICATION FOR REVIEW

1. The applicant is a citizen of Pakistan who is aged in his [age range]. He is from Karachi in Sindh province. He arrived in Australia in October 1989 and lodged an application to the Department of Immigration for a Protection visa in January 1993. The application was refused by the Department in 1995 and affirmed by the Refugee Review Tribunal (RRT). Since that time, the applicant has lodged various applications for judicial review and Ministerial intervention. The last Ministerial intervention application was commenced in February 2014. A decision was made by the Minister not to intervene in March 2014. 

2. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235) (see below), the applicant was able to make a further application for a Protection visa [in] April 2014. The applicant essentially claimed that since he left Pakistan the security, political and criminal situation has become increasingly unstable and his significant period of time in Australia will cause him to be targeted for ransom. The applicant also referred to his previous support for a political party, the Punjabi Pakhtoon Ittehad (PPI). He also claimed that he will be subject to considerable socio-economic difficulties and he will be without family support. The applicant also claimed he will be subject to discrimination because he speaks Punjabi.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] October 2014. The delegate found that any political activity the applicant previously had was minimal and he has not had involvement in political activities in the several years he has been in Australia. The delegate also stated that Punjabi is the largest linguistic group in Pakistan and there is nothing to suggest he would be targeted for this reason. The delegate was also not satisfied he would be targeted because he is a returnee from the West and also stated that the applicant was unable to substantiate how he would be directly affected by socio-economic, environmental or security related challenges facing Pakistan.

4. 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). The delegate assessed the applicant against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicant only against the Complementary Protection provisions.

   RELEVANT LAW

5. Section 48A imposes a bar on a non citizen making a further application for a Protection visa while in the Migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant made his first application to the Department prior to the commencement of the Complementary Protection provisions and his application was assessed by the delegate in relation to the first application only on the basis of the Refugee criterion in s.36(2)(a).

6. As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa) and (c).

7. The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

8. Subsections 36(2)(c) provides an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a 'member of the same family unit' as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

   CLAIMS AND EVIDENCE

   Application to the Department

9. When lodging his first application to the Department in November 1993 the applicant claimed to be a supporter of the Punjabi Pakhtoon Ittehad (PPI) which supports Punjabis in the Sindh province. The applicant referred to the problems between the PPI and the Mohajir Quami Movement (MQM) and claimed that he was identified as an outsider because he spoke Punjabi. The applicant claimed to have been attacked by the MQM and as a result of continuing intimidation his family decided he should leave Pakistan.

10. When lodging the current application to the Department, the applicant indicated that he speaks, reads and writes Punjabi and English. He also indicated that his religion is Sunni Muslim. He indicated that prior to his arrival in Australia he resided in Karachi, Pakistan. The applicant provided details indicating that he had been employed in [occupation] prior to his arrival in Australia. He completed his High school studies and undertook a qualification in [subject].

11. In response to questions on the application form as to why he left Pakistan, the representative has written “[temporary] visa to arrive in Australia”. The representative also indicated on the application form that the applicant wished to rely on the Complementary Protection criterion “socio-economic in accordance with Complementary Handbook. Punjabi heritage exacerbates discrimination”. The representative has also stated that the applicant will be marginalised from his family and the economy, and order within Pakistan has continued to deteriorate. The representative refers to “chronic corruption” and submits that the applicant would be considered a “rich Pakistani citizen” upon his return and would be a victim of the worsening crime situation. He cannot relocate elsewhere as he has no means of support.

12. In an attached submission, dated [in] April 2014, the applicant’s representative submitted that “we do not seek to re-present persecutory claims that have been thoroughly ventilated”. The representative submitted that the applicant relies on the sur place situation by virtue of the significant deterioration of political instability owing to the continued rise of Islamic fundamentalism, mainly through the growing political power of Al Qaeda. The applicant was formerly a supporter of the PPI (Punjabi Pakhlook Ithad) and a “type of anarchy now prevails”. The fact that the applicant is from the Punjab area exacerbates this situation. The applicant may also be recognised as being rich by virtue of the fact that he will be a Pakistani from the West who is returning. He also does not speak Urdu well. It is submitted that the applicant previously made claims on the basis of being perceived as an ethnic Punjabi and the perception that he is a Mohajir. The representative asks that the more recent country information be taken into account regarding what amounts to the sur place claims that have arisen since the applicant’s departure from Pakistan.

13. It is further submitted that the applicant meets the Complementary Protection provisions due to his estrangement from his family and “breach of socio-economic rights”. It is submitted that the demographic of the applicant will attract specific inaction by the State as a result of the political and social situation relevant to the applicant’s capacity to subsist and crime has flourished making it unsafe for him to return. The applicant fears being ostracised from mainstream society. The representative refers to decisions of the RRT (different constituted) where it was found that a person had infringed social mores and social dishonour such that they came within the Complementary Protection provisions. It is further submitted that the nature of the political and social deterioration throughout Pakistan means that meaningful or state protection is “simply not available and the risk of harm is specific and individualised and the applicant can easily be identified by the way he speaks Urdu, his Punjabi characteristics and his previous support of the opposition. He fears he would have no life, place to live, or job, and he suffers from serious depression as a result of feelings of pointlessness”.

14. Various newspaper reports on the death of a Pakistani-Australian businessman in 2013 and other crimes in Karachi and elsewhere were provided.

15. The applicant attended an interview with the delegate [in] October 2014. The Tribunal has listened to the CD Rom recording of the interview. The applicant spoke English during the interview. The relevant evidence is discussed below.

    Application for review

16. When lodging the application to the Tribunal, the representative provided a submission, dated 11 November 2014. In the submission, the representative submits that the delegate failed to deal with the significant increase in fundamentalism in Karachi and the polarised nature of society, particularly in Karachi. It is submitted that this has exacerbated the dislocation that is occurring and which may create/intensify the problems the applicant would face upon his return. It is also submitted that the country information referred to by the delegate is “too theoretical/objective and does not reflect the true circumstances of the applicant”.

17. The applicant appeared before the Tribunal on 2 June 2016 to give evidence and present arguments. An interpreter in the Punjabi and English languages was available to assist during the hearing, but the applicant chose to speak in English during the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm?

18. In considering whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he is returned to Pakistan, the Tribunal has had regard to the applicant’s written claims, his oral evidence to the Department and the Tribunal, and the representative’s submissions. Where relevant, the Tribunal has also had regard to the Department of Foreign Affairs and Trade’s most recent Country Report on Pakistan, dated 15 January 2016.

19. Having considered all the evidence, the Tribunal accepts that the applicant has been honest and forthright in presenting his claims. However, his claims essentially relate to his considerable concerns regarding the generalised political and security situation in Pakistan and his fears of readjusting to life in Pakistan after some 27 years in Australia. The Tribunal has sympathy for the applicant and accepts that he has grown accustomed to the Australian way of life, given his significant period of residence. The Tribunal also accepts that it will be difficult for him to readjust to life in Pakistan, but for the following reasons the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to Pakistan.

    Past political involvement and discrimination as a Punjabi

20. The applicant has claimed that due to his previous support of the PPI, which is “exacerbated” by the fact that he is from a Punjab area and his parents are Punjabi, he will suffer harm upon his return to Pakistan. The applicant claimed that he was a supporter of the PPI and would go to rallies and demonstrations and there was considerable violence between the MQM and PPI. The applicant has also claimed that because his family was originally from the Punjab, he suffered from discrimination in Karachi (in Sindh province). Although the applicant’s representative submitted in the submission to the Department, that the applicant does not speak Urdu well it was also submitted that he speaks Urdu with an accent and can be easily identified. During the Department interview, the applicant told the delegate that although he speaks in Urdu he has a different accent and some words differ. He stated that he has never said he cannot speak Urdu. 

21. During the Tribunal hearing, the applicant was asked what harm he suffered as a Punjabi in Karachi given that he was born and educated in Sindh province and he had all his schooling in Karachi. The applicant stated that although he was born in Sindh he spoke Punjabi at home with his parents and his dialect distinguishes him as someone who is from the Punjab. When asked by the Tribunal what problems he had as a result of his Punjabi accent, the applicant stated that when he was young there were not too many problems, but when the MQM came into power the conflicts between the Punjabis and the Sindhis increased considerably. The applicant supported the PPI because he needed the protection of the party at that time. When advised during the hearing that the Tribunal can find no information indicating that the PPI has continued to exist, the applicant stated that he is uncertain what has happened to the party, but he believes that its members may have joined other parties and it has since dissolved. When asked why he believes he would be harmed as a result of his previous involvement with the PPI, the applicant stated that he believes he may still be targeted as a result of his previous support for the PPI. The applicant referred to target killings in 1993 and 1994 and stated that he believes people may be waiting for him if he returns to Pakistan. The applicant was asked by the Tribunal about his claims that he will be viewed as a Mohajir. The applicant stated that the term ‘Mohajir’ can mean someone who has moved from another part of Pakistan and because his family is from the Punjab he is viewed as an “outsider”, even though he lived and was born in Sindh.

22. The Tribunal has considered the applicant’s claims regarding his past political involvement and his fears as an ethnic Punjabi residing in Karachi in Sindh province. The Tribunal firstly accepts that the applicant was a supporter of the PPI, a political party in Karachi which began as a movement to represent the rights of Punjabis and Pashtuns living in Karachi and other urban areas of Sindh.[1] The Tribunal also accepts that the applicant attended rallies and demonstrations and when he left Pakistan in 1989 there was considerable ethnic conflict between Mohajirs, Sindhis, Punjabis and Pashtuns, and several riots in the 1980s resulted in the deaths of numerous people from various ethnic groups. The independent evidence confirms that in 1988 during three days of rioting more than 250 people from various communities (Mohajirs, Punjabis, Sindhis), died in Karachi). The bodies of three Punjabis were subsequently found on a railroad near Model Colony in Karachi in 1990. Further ethnic clashes in 1990 also resulted in the deaths of about 30 people.[2]

    [1] Banks, Arthur S. et al, Political handbook of the World, 1997.

    [2] Ahmed, Tehmina 1988, ‘Pakistan: Little to Celebrate in Karachi this Ramadan’, Inter Press Service, 19 May; and Salamat, Ali, 1990, Sindh Violence Eclipses Kashmir Crisis: Home Fires Burning, 14 June.

23. The Tribunal accepts on the basis of the above that the applicant left Pakistan at a time when there was considerable ethnic violence and he may at some point have been involved in conflicts between the PPI and members of the MQM and harmed during that time. The Tribunal accepts that it was for this reason that the applicant left Pakistan for the security of Australia. However, the Tribunal is not satisfied that the applicant’s evidence indicates that he was a member or a high profile supporter of the PPI, such that he would be targeted by the MQM or any other political parties upon his return to Karachi where he has not lived for some 27 years. The independent evidence indicates that since the applicant left Karachi there has been ongoing ethnic diversification in Sindh, and Karachi has become an increasingly diversified city. DFAT has also reported that Pakistan is ethnically and linguistically diverse and Punjabis are the largest linguistic group (45 per cent) with Pashtuns representing 15 per cent, Sindhis 15 per cent and Seraikis 8 per cent (a variety of Punjabi).[3] The evidence before the Tribunal indicates that as at 2011 the Mohajir population represented about 44 per cent of the Karachi population, but the Sindhi, Pushto, Punjabi, Kachhi, Gujarati, Bangali and Burmese speakers also have a significant presence in the city, although Mohajirs are projected to remain the single largest ethnic group through 2025 which is more than double the size of the next group.[4]

    [3] Department of Foreign Affairs and Trade, 2016, Pakistan: Country Report, 15 February, p. 4.

    [4] Haris, Gazdar ‘Karachi’s Violence: Duality and Negotiation’ SPO Discussion Paper Series, no. 10 (2011).

24. Furthermore, as discussed at the hearing and confirmed by the applicant, the PPI no longer appears to exist as an organised party. The evidence indicates that in in Sindh the PPP won the largest number of seats in the 11 May 2013. The evidence indicates that the MQM, a Karachi based secular party has been in conflict with the Sindhi-backed PPP and Pashtun parties.[5] The most recent DFAT report states that politically motivated violence occurs throughout Pakistan, but is most prevalent in Karachi between members of the MQM, ANP, PPP and Sindhi nationalist parties, many of which maintain armed wings. As discussed extensively with the applicant at the hearing, the DFAT report also states that since September 2013, Ranger paramilitary operations aimed at dismantling extensive militant and politico-criminal groups in Karachi have reduced the number of targeted attacks and lessened the activities of criminal syndicates. According to DFAT, official statistics show that there has been a 73 per cent reduction in the number of targeted killings and an 85 per cent reduction in the number of kidnapping for ransom incidents in Karachi in 2015 (target killings peaked at 73 in December 2013, compared with less than 10 in June 2015; and there were 174 kidnapping cases in 2013, compared with only 10 from January to July 2015.

    [5] Department of Foreign Affairs and Trade 2016, Pakistan: Country Report, 15 January, pp. 12-13.

1. The Tribunal is not satisfied that as a result of any involvement the applicant had in rallies and demonstrations several years ago will result in him and some conflict he had with the MQM that there is a real risk he will be targeted by the MQM or any other opposing political parties upon his return to Karachi. The Tribunal considers that the evidence set out above indicates that the MQM is not targeting members and supporters of Punjabi parties and is instead focusing its attention on the PPP and the Pashtun parties. The Tribunal considers it unlikely that it will be known some 27 years later that the applicant had any involvement with the PPI, but even it is known the Tribunal does not accept that this will result in him being targeted or sought by the MQM or any other political parties. The Tribunal is not satisfied, therefore, that there is a real risk that the applicant will be targeted or suffer significant harm by the MQM or any other political parties upon his return to Pakistan.

2. In terms of his claims relating to his Punjabi ethnicity, the Tribunal accepts that lingering resentments may exist throughout Pakistan against Punjabis who are considered to obtain economic and political benefits not found in Karachi which has struggled with crime, terrorist incidents and an influx of various ethnic groups seeking refuge[6]. The Tribunal accepts that the Punjab is perceived to be politically and demographically dominant whilst Sindh is perceived to operate in a “seemingly permanent state of disadvantage” and is seen by some as unlikely to meet its full social and economic potential in the absence of major qualitative changes to the Pakistani state.[7] However, the major ethnic clashes in Karachi are between the ethnic Pashtuns, whom the Mohajir’s view as sheltering terrorists in Karachi.[8] DFAT has stated that Pashtun-majority areas have been disproportionately affected by violence because of the historical concentration of military operations, militant attacks and tribal, intra-communal and politically motivated violence in those areas. The most recent DFAT report does not name Punjabis as one of the groups of interest and the Tribunal is not satisfied that there is any evidence to indicate that Punjabis are targeted in Sindh province. Additionally, although the Tribunal accepts that the applicant speaks Urdu with a Punjabi accent, his own evidence indicates he was born and raised and educated in Sindh province. The Tribunal is not satisfied, therefore, that the applicant’s own evidence or the independent evidence indicates that there is a real risk he would suffer significant harm as a result of his Punjabi ethnicity, accent or his prior involvement with the PPI or because he is viewed as a Mohajir or an outsider of some kind.

   Returnee from the West

   [6] Raja, Raza Habib, 2015, ‘Punjab’s dominance is not because Punjabis are chauvinists’, The Express Tribune Blogs, 9 July 2015.

   [7] Congressional Research Service 2015, ‘Pakistan’s Sindh Province’ United States, 29 October.

   [8] Brulliard, Karin 2011, ‘Violence in Pakistan’s largest city exposes deep divides, Washington Post, 8 July.

3. During the Department interview, the applicant stated that he fears he will be personally targeted because it will be known he has been living in a Western country. He will be perceived as rich and will be subject to ransom for money because of the difference in earnings in Australia and Pakistan. The applicant stated that target killings and kidnappings for ransom are common. The applicant referred to a number of target killings in 2013 and stated that they have been because the people have been perceived as wealthy. As discussed above, the applicant also provided some newspaper reports relating to the murder of an Australian/Pakistani businessman.

4. During the hearing, the applicant was asked about his claims that he will suffer significant harm because he has lived in a Western country for a long period of time. The applicant stated that he will be perceived as wealthy as a result of his long presence in Australia. In response to the country information discussed with the applicant which indicates that many Pakistanis live in the United Arab Emirates and Western countries for extended periods of time and there is limited evidence of such people being specifically targeted, the applicant stated that it is true that a significant number of Pakistanis travel to and from Western countries to Pakistan, but when they arrive at the airport they have security personnel to accompany them to their hotels. The applicant stated that they do not even trust taxi drivers because the taxi drivers often have criminal connections and will target returnees and kidnap them for ransom. The applicant believes that the majority of the incidents are not reported.

5. As discussed above, the DFAT 2016 report states that “Western influence is pervasive in many parts of Pakistan” and may Pakistanis have relatives in western countries and those living abroad frequently return to visit relatives. DFAT assesses that “individuals are not subject to discrimination or violence on the basis of having spent time in the West”.[9] The Tribunal accepts that the applicant may initially be perceived as wealthy having spent several years in a Western country. However, the independent evidence discussed above indicates that in Karachi the kidnappings for ransom have declined considerably in recent years. The Tribunal does not accept that the independent evidence indicates that, apart from some isolated incidents, there is targeting of persons returning from the West after having lived in a Western country for a considerable period of time. The Tribunal is not satisfied, therefore, that there is a real risk the applicant will be kidnapped or held for ransom or will otherwise suffer significant harm because he is a “returnee from the West” and/or is perceived as wealthy upon his return to Pakistan.

   General security, living standards and reintegration

   [9] Ibid, p.16.

6. As indicated above, the applicant has made generalised claims in relation to the security situation, lower level of security and a high crime rate in Karachi. During the Department interview, the applicant claimed that he cannot live safely in Pakistan because of political rivalry and the rise in Islamic fundamentalism. The applicant referred to a lower standard of living and differences in the quality of water. He also stated that he was [age] years of age when he came to Australia. He is now [age range] years old and he becomes stressed very quickly. The applicant stated that the security situation has deteriorated and Islamic fundamentalists taking power. The applicant stated that he does not believe he could be protected because the government is corrupt and corruption is considerable throughout Pakistan. The applicant stated that when he left Pakistan several years ago he thought the high level of corruption was “normal” but he has become accustomed to the Australian way of life. He does not believe he would be able to readjust or reintegrate into Pakistani society. He believes in democratic government and he does not believe in the distinction between Sunni and Shia and small comments like that can result in harm.  When advised by the Tribunal that he is a Sunni Muslim and the people who are the main target of terrorist groups in Pakistan are minority religious groups, police or employees, the applicant stated that he believes the situation in Pakistan has continued to deteriorate and there are many instances of Sunnis being targeted and killed. The applicant referred during the hearing to his generalised fears and concerns relating to corruption, the lack of opportunity for people and a climate of target killings, and claimed he will not have sufficient money to pay for police protection. The applicant stated that as a result of the high level of poverty people can be killed for less than $10. The applicant stated that he has no way of surviving in Pakistan if he returns and although he could previously obtain employment he is now 27 years older than when he last left.

7. During the Department interview and during the hearing, the applicant stated that he does not know where his parents live, but he heard from friends that they might have moved to [another country]. He stated that his parents would be in their [age range] and he has [specified siblings] but he has no knowledge of their whereabouts. The applicant stated that he has spent half his life in Australia and he has lost contact with his family several years ago. The applicant does not believe he will be able to find his family. The applicant again referred to his difficulties with reintegrating.

8. The Tribunal has considered the applicant’s claims regarding the general security situation, living standards and the difficulties he will have reintegrating into Pakistani society. As discussed with the applicant during the hearing, although the Tribunal accepts that the security situation in parts of Pakistan continues to be unstable, the majority of attacks are against minority religious groups, such as Shias, Ahmadis and Christians and whilst there is recruitment by Islamic State in Pakistan, as in many other countries including Western countries, the evidence does not indicate that Islamic State has anything other than a limited presence in Pakistan. DFAT has reported in its 2016 report that “despite occasional media reports of minor militant groups claiming allegiance to Islamic State (IS) such as the TTP splinter group Jundullah, and arrests of IS members there is no credible evidence of an active or organised Islamic State presence in Pakistan and such claims are “rhetorical or aspiration in nature”.[10] The Tribunal accepts that there are some reports of Islamic State presence, but they refer largely to recruitment rather than operations by Islamic State and indicate that the threats extend to some reports of Islamic State graffiti and pamphlets and the arrests of some persons who were planning to train with Islamic State in Syria and Iraq.[11] Furthermore, although there is a relatively high crime rate in Karachi, there has been a considerable decline in the level of serious crime, including homicide due to Operation Zarb-e-Azb which has substantially reduced criminal activity.[12] The independent evidence set out in the most recent DFAT report which is discussed above indicates that there has been considerable improvement in the security situation in many parts of Pakistan. The applicant is not a member of a minority religious group and his only involvement in politics was as a supporter of the PPI some 27 years ago. The Tribunal is not satisfied, on the basis of the applicant’s evidence or the independent evidence, that there is a real risk that the applicant will suffer significant harm as a result of the generalised criminal and security situation or that he will be targeted for harm by fundamentalist Islamic groups.

   [10] Department of Foreign Affairs and Trade, 2016, Country Report: Pakistan, 16 February.

   [11] Jamestown Foundation 2016, Growing Evidence of Islamic State in Pakistan, 4 February. 

   [12] Department of Foreign Affairs and Trade, 2016, Country Report: Pakistan, 16 February, p. 7.

9. As stated above, the Tribunal accepts that after such a significant period of time, the applicant will find it difficult to readjust to life in Pakistan and that there is a different standard of living and a level of corruption not present in Australia. However, the Tribunal does not accept that the applicant will be ostracised or will be “perceived as having infringed social mores” or that the generalised corruption will result in the applicant suffering significant harm. The Tribunal also considers that although the applicant may suffer from some level of anxiety and depression, there is no evidence that this has affected his ability to obtain work or to maintain a reasonable standard of living. Given that the applicant completed high school, has a diploma and considerable employment experience, the Tribunal is satisfied that although he will no doubt suffer considerable difficulties adjusting to the Pakistani culture and society, he will be able to re-establish himself in Pakistan. As also discussed with the applicant during the hearing, the Tribunal is also not satisfied that any difficulties he will have readjusting and the differing living standards fall within the Complementary Protection provisions. This is because the Tribunal is not satisfied that such difficulties amount to the death penalty or arbitrary deprivation of life and the latter three elements of significant harm, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment, contain an intent requirement.[13] The Tribunal is not satisfied that the applicant’s difficulties in re-establishing himself and reintegrating or the fact that his family members may no longer live in Pakistan will be intentionally inflicted. The Tribunal instead considers that such factors are as a result of the applicant’s individual circumstances in terms of his lengthy period of time outside his country of residence and his integration and settlement in a Western country which will make it difficult for him to adjust to differing standards of living and a different political and economic environment. Additionally, although the Tribunal accepts that there have been some natural disasters from time to time in Pakistan this is a factor which affects the population of Pakistan generally and is not faced by the applicant personally and is, therefore, a situation in which there “is taken not to be a real risk” that the applicant will suffer significant harm.[14]

   [13] See s.5(1) of the Migration Act which defines torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.

   [14] Section 36(2B) sets out three situations in which there is “taken not be a real risk that a non-citizen will suffer significant harm if removed. S.36(2B)(c) states that this includes “the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”.

10. The Tribunal is not satisfied, therefore, that there are substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that the applicant will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. 

    CONCLUSIONS

11. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

12. As stated above, the Tribunal accepts that the applicant is well integrated and adjusted in Australian society where he has made a contribution to the community. The applicant indicated during the hearing that he may seek Ministerial Intervention. Whilst the Tribunal considers that the applicant’s lengthy period of time in Australia may raise compassionate circumstances, any intervention is solely a matter for the Minister’s discretion.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

14. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

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

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

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

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

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

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

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

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

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

    Complementary protection criterion

15. The Complementary Protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.