1419052 (Refugee)

1419052 (Refugee) [2016] AATA 3542 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419052
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Meena Sripathy
DATE:3 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 March 2016 at 11:34am
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

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 applicant who claims to be a citizen of Pakistan applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] October 2014.
The issues in this case are whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention; 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age] year old man from Lahore, Punjab, Pakistan. He is Punjabi and Sunni Muslim and he speaks, reads and writes Urdu and English. He is married, and has a wife, [children], parents [and siblings] who all reside in Lahore, Pakistan. He provided one residential address in Lahore from birth to April 2005. He indicates schooling for only [number] years, withdrawing during year [level] of [school]. He provided details of previous employment as [Occupation 1] and [Occupation 2] in [workplaces] in Pakistan and[Country 1], and indicates his occupation as[Occupation 2]. He arrived in Australia in April 2005 as the holder of a Subclass 457 visa.
In a statement of claims attached to his application, the applicant claims that he fears harm on the basis that he has been working in Australia for 10 years and people will perceive him to be rich for this reason. He fears he will be targeted for kidnapping and extortion. The applicant also claims his [children] are attending a Christian nursery school in Lahore. He fears that if extremists groups such as the Taliban or Lashke Jangui (sic) were to discover this they may kidnap, harm or kill him because they will perceive that he is against Islam. He claims his wife and children live in fear for their lives and are unable to travel far from their house. He claims that the authorities are unable to protect themselves and therefore they do not have the power to protect citizens. He cannot relocate to another part of Pakistan because the security issues are not isolated and affect the whole country.
Also submitted with his application are the following documents:
·A submission from his representative. The representative claimed that the applicant fears harm as a person:
·   whose conduct of enrolling and allowing his children to attend a Christian nursery offends the religion of extremist Sunni groups such as Taliban, Lashkar-e-Jhangvi and/or because he will be perceived to be no longer a Sunni Muslim;
·   who would be imputed with pro-Western, anti-Taliban, anti Lashkar-e-Jhangvi political opinion after his prolonged residence in a western country, his level of western education and his enrolment and the attendance of his children at a Christian nursery;
·   who is a member of a particular social group being ‘returnee from a western country’ or ‘failed asylum seeker’.
·Evidence of enrolment at [a] Nursery relating to the applicant’s [children] and a photo of the applicant’s [children] attending the nursery;
·A newspaper article relating to a bombing of a church in Peshawar.
The applicant was interviewed by a delegate of the Minister [in] October 2014. A copy of the audio recording is included in the Department file and the Tribunal has listened to a recording of it.
On 30 April 2015 the Tribunal received a Statutory Declaration from the applicant addressing reasons referred to in the delegate’s decision record. The declaration contains the following information:
·The reason he did not initially mention his fears about his children’s attendance at the Christian nursery school was because he was nervous and under a lot of pressure, and he had a number of issues with the interpreter.
·He clarified that his fear is not for the safety of his children at the nursery, but rather how their attendance there, together with his residence in a western country, would be perceived by others.
·The applicant stated that since living in Australia he has engaged in activities which would be perceived to be against Islam, including drinking alcohol and other western style behaviours.
·He fears his behaviours, which he intends to continue, will be viewed as against Islam and he will be threatened and harmed.
·He further claims his extended family will view him as shameful and be embarrassed by his no longer adhering to the Islam faith and he may be harmed by them.
·Regarding the delay in lodging his protection visa application, the applicant states that he has returned to Pakistan a number of times since his first arrival in Australia but each time he did not leave the home because of his fears of being targeted. He claims on his last visit his family was warned by other people that he should strictly follow Islamic religion or immediately return to Pakistan.
·Regarding relocation, the applicant states that his western style behaviours will be seen wherever he goes in Pakistan and he cannot live as he wishes to.
The applicant appeared before the Tribunal on 22 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant’s registered migration agent did not attend the hearing. [Name deleted] was also present at the hearing but did not give evidence.
The applicant gave the Tribunal a letter from [the] Managing Director of[a business], dated [February] 2016 attesting to the applicant’s capacity for employment and respect in the community.
The applicant confirmed various details about his family, address and employment history. His family comprises his parents, [siblings], in addition to his wife and[children]. [Country 1][Details of family deleted]. His father was also[Occupation 1], but has been retired for the past 6-7 years due to his age.
The applicant married in 2008. He returned from Australia to Pakistan in 2008 for the marriage. He married in a joint ceremony with[a sibling]. There were about [number] people at the wedding, including the extended family. They had a reception [in] Lahore. He did not stay for long on this visit. He returned again for one month in 2009. His [children] were born [and] he returned to visit his family again in February 2011. He has not been back to Pakistan since then. He provided details of his employment history which included five to six years at [workplace] in Lahore, followed by a year at [workplace] in Islamabad, [a workplace] in Lahore and then a workplace] in [Country 1]. He returned to Lahore after that and did not work for about one year, before returning to [Country 1] to work at [a workplace] from 2003 until March 2005. He came to Australia in April 2005. He mentioned that he also worked for a period in Karachi, before Islamabad but he cannot recall the exact year or period. When he worked in Karachi and Islamabad, he did not have any family in those places; he lived independently. He has worked in all of these places as [Occupation 1] or[Occupation 2].
The applicant came to Australia on a Subclass 457 visa and worked as [Occupation 1] in[location]. After about 2 years he moved to another employer in[city], who subsequently sponsored him for a further Subclass 457 visa. After he returned from his second visit to Pakistan in 2009, he went back to his first employer. His application for the further 457 visa went on for some years, and was eventually refused by the MRT in 2012. The applicant explained that he did not know the reasons for the refusal or when the decision was made. He was advised that his only option after that was to seek a protection visa.
The Tribunal asked the applicant why he feared return to Pakistan. He said he has lived in Australia for a long time and there are many problems in Pakistan and he cannot return to live there. When asked if he faced any threats or harm in the past, he said he did not. He referred to problems going on where people are harassed and asked for money. When asked to be specific about this, he said there were no specific incidents affecting him but it was his observation. He said there are many Shia and Sunni people around and also many police around places of religious worship. The police give people looks as if they are looking for money. Again, when asked to be specific, he referred to one incident on his last visit when he was returning from changing money. He was stopped by a police officer who asked for his licence and ID card, which he produced. He also gave the officer Rs1000. When asked why, he said he did so that the police officer would leave him.
The Tribunal asked if he had any other reason he did not want to return. He said he sent his children to a Christian nursery school from[a young age]. When asked if they are still at this school, he said they are not. They stopped attending last year because now they are [age] years old and are ready for primary school. His wife is tutoring them at home [now]. They are still in the process of looking for the right school for the children. The Tribunal asked the applicant why they don’t attend the school his[sibling]’s children attend. He said his wife is currently living between his parents’ house and the house of her parents. Her father recently passed away and she is also responsible for her [siblings] so she has been staying with them.
The applicant said he sent his children to the Christian nursery because the nuns there used to come to his father’s [business] when he was young and he always wanted his children to go there. He confirmed that they are no longer attending the nursery because they are now ready for big school. There were no adverse incidents against them, the nursery or anyone in his family during the period they attended this nursery. The Tribunal put to the applicant that, in light of his evidence that they are no longer attending this nursery, and nothing happened to them while they were there, it would appear there is no longer a basis for a fear of harm to him in future for this reason. The applicant gave no response to this.
When asked again why he feared return to Pakistan, the applicant repeated that life is not good or easy there. He prefers his life in Australia and he cannot go back.
The Tribunal referred to his claim in his written application and statutory declaration that he will be at risk of harm on the basis of having been here for so long and being perceived to be wealthy. It put to him that independent information before the Tribunal does not support that he would be at risk on this basis if he returns. In response he repeated that he does not want to go back to Pakistan, because it is better in Australia.
The Tribunal asked the applicant about his claim in his Statutory Declaration regarding western style behaviours he has engaged in here. He said that he has sometimes drunk alcohol in a social setting after work. When asked how this causes him to fear harm if he returns to Pakistan, he said that he would not be able to find alcohol there and it is forbidden. The Tribunal asked him if alcohol was not available in the [workplaces] he has worked at previously in Pakistan. He confirmed that it was[details deleted]. The Tribunal asked him how he would be at risk in Pakistan if he consumed alcohol privately at home. The applicant repeated that it was easier to do so many things here in Australia.
The Tribunal asked if there were any other behaviours he had engaged in that caused him to fear harm. He said he hasn’t read the Koran regularly and has not offered his prayer as often as he should. When asked if he always did this in Pakistan when he lived there, he confirmed he did not. When asked if he ever had any problems because of that in the past, he said he did not. He said sometimes people who have beards make comments that it is haram for people to live overseas. The Tribunal put to the applicant that he lived in [Country 1] before Australia and has returned from [Country 1] and from Australia to Pakistan on numerous occasions, and experienced no adverse incidents to date. In response he said when he returned each time he hardly went out. He repeated that he is afraid of being kidnapped or money being demanded of him, or being shot.
The applicant then mentioned his sister and brother in law were held up at gun point when returning from enrolling their [child] in school. The assailant took his brother in law’s wallet and the motorcycle. They complained to the police but no action was taken. This incident occurred in Karachi, 5-6 years ago. When asked why he did not mention this previously, he said he told his lawyer about it. The Tribunal put to him that this appears to be a random criminal act, and it occurred in Karachi which had a high crime rate in that period. He agreed with this.
The Tribunal put to the applicant that country information before it indicates that the security situation in Pakistan has improved significantly in the past 12-18 months and this may suggest to the Tribunal that there is not a real risk he will suffer serious or significant harm if he returns in the foreseeable future. In response the applicant said he does not trust the politicians, though he accepts the army has done good work in reducing terrorism and security incidents. When asked whether he can live elsewhere in Pakistan to be safe, given he has previously lived in Islamabad, he said he is afraid to live anywhere in Pakistan since he has been here for so long.
The Tribunal discussed with the applicant the delay in making his protection application. It put to him that it may find that he only made this application because his 457 application process came to an end and he wanted to remain in Australia and not because he was genuinely fearful of returning. In response he said when he went back to Pakistan previously he did not ever stay long. He took the advice of his lawyers and that is why he made the application when he did.
At the conclusion of the hearing the Tribunal noted the applicant had brought a witness to give evidence and asked what information he wanted him to provide. He said he could attest to the fact that the applicant has lived here for a long time and hasn’t done anything wrong. He referred again to the length of time he has lived in Australia and his desire to provide a better life and education for his children. The Tribunal explained it can only consider in this application matters relevant to his protection claims, and asked again if the witness has any information relevant to this to provide. The applicant explained he is [occupation] and can give a guarantee for him if necessary. As this was not relevant to his protection claims, the Tribunal indicated it had no questions for him.
Independent information
According to Neta C. Crawford, Professor of Political Science at Boston University and co-director of the Costs of War Project, there are ‘several interrelated armed conflicts between the militants and the government, and between militants and international forces, underway in Pakistan.’ Most fighting between militants and the government takes place in the northwest of Pakistan though civilians have also been affected across the country. Along with US drone strikes, which have caused civilian deaths, injury and displacement, thousands of civilians have been killed in suicide attacks, assassinations and ambushes by the Pakistani Taliban (Tehreek-i-Taliban – TTP), al Qaeda and other militant groups. Pakistan’s security forces have also killed civilians as they targeted militants.[1]
[1] Crawford, Neta.C., Costs of War: War-related Death, Injury, and Displacement in Afghanistan and
According to the South Asia Terrorism Portal, from 2003 to 2015 (data up to 27 September), at least 20,697 civilians have died as a result of terrorist violence. Pakistan’s National Security Policy 2014-2018 was quoted as saying ‘Pakistan is facing serious traditional and non-traditional threats of violent extremism, sectarianism, terrorism and militancy. This has adversely affected economic stability and social harmony and continues to instill a sense of insecurity among the people at large.’[2]
[2] The Nation, Text of National Security Policy 2014-18, 27 February 2014,
>
The 2016 DFAT Country Report for Pakistan states the following in relation to the security situation:
2.28 Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access tosafe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come. However, DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.
…
2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas (see ‘Militant Groups’ below).
2.31 Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e-Azb, which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan.[3]
[3] DFAT Country Report Pakistan 16 January 2016, pp6-7

Other sources also confirm that the overall security situation has improved. For example, the UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation[4] reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS), indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013[5].
[4] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015
[5] European Asylum Support Office, Country of Origin Information Report Pakistan Country Overview, at p53 citing PIPS, 2014, Pakistan Security Report, 2015, p. 7.
As many as 436 of the total reported terrorist attacks (about 36 percent) exclusively targeted personnel, convoys and check-posts of security forces and law enforcement agencies. Civilians were the apparent targets of 217 attacks (18 %). A total of 157 attacks (13 %) had sectarian targets, mainly members of the Shia and Sunni communities and worship places including mosques and shrines. Another 66 terrorist attacks targeted pro-government tribesmen, members of tribal peace committees and lashkars, 56 attacks were aimed at political leaders and workers while 40 targeted educational institutions, mainly schools. Other targets hit by terrorists during the previous year included state installations such as gas pipelines, power pylons and railways (a total of 121 attacks), polio health workers (24 attacks), NATO supply vehicles (22 attacks), government officials (11 attacks), journalists and media (11 attacks) and minority communities (8 attacks). Officials of the political administration in the FATA, tribal elders, non-Baloch settlers/workers in Balochistan, members of NGOs and civil society, private property, alleged spies and foreign interests/diplomats etc. were also targeted by terrorists in different parts of the country in 2014.[6]
[6] European Asylum Support Office, Country of Origina Information Report Pakistan Country Overview p53
The UK Home Office Report provided the following information about security incidents in 2015:
5.3.9 On 17 February, a suicide attack at the police headquarters in Lahore killed
6 people, including 4 civilians and a police officer. On 15 March, at least 14
people were killed in bombings targeting 2 churches in Lahore. A further 70
were wounded. The SATP provided data on major incidents of terrorismrelated
violence for 2015. From 1 January 2015 until 20 September 2015,
they noted 2,466 fatalities.
5.3.10 On 29 July 2015, Malik Ishaq, leader of the banned militant group, Lashkare-
Jhangvi (LeJ), was killed in gunfight that occurred in Punjab province after
his supporters allegedly attacked a police convoy in an attempt to free him.
Ishaq’s two sons, his deputy and 11 militants were also killed. There was
speculation that Ishaq was killed in a police “encounter”, whereby shoot-outs
are staged to eliminate suspects. In an apparent response to the killing of
[7] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015, p13
the LeJ leader, Punjab Home Minister, Shuja Khanzada, was killed in a suicide attack on 16 August. Sixteen others were also killed in the blast.[7]
As of September 2015 there had been a 70 per cent reduction in the number of terrorist attacks compared with the same period last year and, according to the South Asia Terrorism Portal, an almost 50 per cent reduction in the number of terrorism related fatalities.[8] Arif Rafiq has noted that if the trend continued ‘the number of Pakistani civilians killed in terrorist attacks this year will be the lowest since 2006’, ie., before the emergence of the TTP in Pakistan. While the number of people killed in sectarian attacks has increased in 2015 from 2014, Rafiq points out that the number of attacks has in fact halved, with ‘two gruesome massacres’ responsible for the high fatality rate. Rafiq attributes the decline in the number of attacks to, among other things, the country wide implementation of the NAP.[9]
[8] Craig, T 2015, ‘In Pakistan, a prime minister and a country rebound — at least for now’, The Washington Post , 08 September <
[9] Rafiq, A 2015, ‘Operation Karachi: Pakistan's Military Retakes the City’, The National Interest, 24 August <
In relation to failed asylum seekers DFAT’s 2013 Country Information Report for Pakistan provided the following information:
5.15 Failed asylum seekers may be questioned by Pakistan’s Federal Investigative Agency or other authorities on their return to Pakistan to determine whether they are wanted for crimes in Pakistan. This includes possible immigration or human trafficking offences by leaving Pakistan illegally. Unlawful emigration is punishable by a fine and up to five years imprisonment. In cases where returnees are suspected to have committed offences, they may be arrested or have to report regularly to local police stations as a form of parole.
5.16 Because asylum seekers generally leave Pakistan for interim destinations on valid travel documents and have therefore not committed immigration offences, they are released soon after their return to Pakistan. Returnees may arrive in Pakistan on scheduled or charter flights and may be responsible for arranging their own onward transportation from their point of entry to Pakistan.
5.17 Involuntary returnees or their families will, in many cases, have taken on debt to finance their outward journeys. Although most will not be punished, without reintegration assistance, the primarily problem returnees will face will be economic—the inability to find employment or to repay debts incurred to travel abroad.
5.18 DFAT has no information to indicate that returnees are punished on their return to Pakistan[10].
[10] DFAT Country Information Report Pakistan, 29 November 2013, p.23
In relation to Western Influences, the most recent 2016 DFAT report says
3.62 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship) and western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.[11]
[11] DFAT Country Report Pakistan 16 January 2016, p16
FINDINGS AND REASONS
A summary of the relevant law is set out at Attachment A.
Nationality
On the basis of the evidence of the applicant’s passport the Tribunal finds that he is a citizen of Pakistan and Pakistan is his country of nationality for the purposes of this assessment of protection obligations.
Consideration of applicant’s claims
In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s files before it, including his application for the Protection visa, the documents he provided to support his claims, his evidence to the delegate at interview and written and oral evidence he gave when he appeared before the Tribunal. It has also had regard to independent information referred to in the delegate’s decision and above regarding relevant matters and current conditions in Pakistan.
The Tribunal finds the applicant a generally truthful witness. He gave his evidence to the Tribunal in an honest and open manner, answered the Tribunal’s questions candidly, and has not particularly embellished or exaggerated his claims.
The applicant claims he fears returning to Pakistan because he has been living in Australia for over 10 years. He fears he is in danger of being kidnapped for ransom or being shot at, or being the victim of an attack. He claims that he is at risk because of perceptions that may be made that he is wealthy, and/or that he has become Westernised and anti-Islam as a result of the period of time he has spent in Australia. Before the Tribunal, the applicant also claimed that his engagement in certain Western style behaviour since coming to Australia, such as consuming alcohol and not attending regular prayers, puts him at risk of harm in Pakistan. Before the Department the applicant also made a claim that his [children] were attending a Christian nursery and he feared harm because of the perception that he is anti-Islam for sending his children to a Christian school. However, his evidence to the Tribunal was that his children are no longer attending this nursery, as they are now [age] years of age and at primary school age and they are currently being schooled at home by his wife.
On the evidence before it the Tribunal accepts that the applicant is a [age] year old Sunni Muslim man who was born and resided in Lahore for the majority of his life prior to coming to Australia. It finds that the majority of his close family, including his wife, children, parents and most of his siblings live and work in Lahore. The Tribunal accepts, on the evidence before it, that the applicant has spent a substantial part of the last 15 years outside Pakistan, in [Country 1] and Australia. It finds that he has, in this period, returned to Pakistan on a number of occasions, including 6 months in 2002, and on three occasions since coming to Australia, in 2008, 2009 and 2011 for periods of 4-6 weeks. On the applicant’s own evidence, neither he nor any close family members in Lahore have suffered any specific incidents of past harm on the basis of, or as a result of, his overseas residence.
The only past incidents referred to by the applicant are the following. He told the Tribunal that during his last visit to Pakistan in 2011 he was stopped for no apparent reason by a police officer on his way back from changing money, and paid an amount of Rs 1000 to him so that he could be on his way. Though he had not previously mentioned this incident in his application, the Tribunal is prepared to accept it as credible and plausible. However, there was nothing in the applicant’s account of this incident that suggests he was targeted specifically as an overseas returnee or for any other reason. The Tribunal also does not consider that the extraction of a sum of Rs1000 by a police officer amounts to serious or significant harm.
He also mentioned to the Tribunal at hearing, a robbery experienced by his sister and brother in law in Karachi some 5 or 6 years ago, while returning from enrolling their child at school. He claimed his brother in law’s wallet and motorcycle were taken. Although this incident was also not mentioned by the applicant in his written evidence to the Department or at his interview with the delegate, the Tribunal is also prepared to accept it as credible and plausible, given that the alleged incident took place in Karachi some 5-6 years ago at a time when violence and the crime rate in Karachi was high.[12] The Tribunal does not consider that this random criminal incident, experienced by his sister and brother in law in a different city some years ago, bears any significance upon the chances he will suffer persecution or significant harm in future.
[12] See for example, [12] Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, pp. 4, 6-7, 8, 11: >
Apart from these two incidents the applicant has not indicated any other incidents, threats or past harm experienced by himself or any members of his family because of his overseas residence, or for any other reason. While it accepts that the applicant was stopped by police and paid a sum of money to the officer, and his sister and brother in law were the victims of a robbery in Karachi 5 or 6 years ago, the Tribunal does not accept that either of these incidents is an indicator of future harm to him on the basis of his previous overseas residency or any perceptions arising from this fact.
Regarding the applicant’s claim that he will face harm on the basis of the time he has lived in Australia and any perceptions that may be made as to his wealth or religious conviction (or lack thereof) as a result of this, he has provided no specific evidence or concrete basis for this claim. The Tribunal notes the DFAT assessment in its most recent report (referred to at paragraph 33 above) that individuals are not subject to discrimination or violence on the basis of having spent time in the West. There is no other information before the Tribunal to support a finding that simply a prolonged presence in Australia on its own, subjects people to harm upon return to Pakistan. The Tribunal has considered the applicant’s evidence regarding his claimed adaptation of ‘western style behaviour. It is not convinced by his oral evidence that anything he has done in Australia, such as engaging in occasional social drinking, which it accepts he may have done, will put him at risk of future harm in Pakistan. On his own evidence, he was not a devout practicing Muslim prior to coming to Australia, and the Tribunal does not accept that he will face a real chance of harm if he is not, or is not perceived to be, sufficiently devout in his practice of his religion upon return. It also does not accept that he faces a real chance of serious harm if he were to occasionally engage in social drinking in Pakistan in the privacy of his home or workplace, particularly given his own evidence that he only very occasionally did so here.
The Tribunal has considered the applicant’s claim, made in his Statutory Declaration of April 2015, that he is at risk of physical harm from his extended family members for not adhering to his Islamic faith. He did not make this claim in his original written application or mention this fear in his interview with the delegate. He has not provided any further detail about who specifically in his extended family he would be afraid of, why, or on what basis he has for this fear. For these reasons the Tribunal does not accept this claim. It does not accept that the applicant faces a real chance of serious harm from his extended family members for not adhering to his Islamic faith.
On the applicant’s own evidence to the Tribunal, it finds that his children no longer attend a Christian nursery because they have reached school age. It finds, on his oral evidence, that they are currently being home schooled by his wife because they have not yet chosen a school to send the children to. The Tribunal finds, also on the applicant’s oral evidence, that neither he, his children or any close family member suffered any harm during the period they attended the nursery. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm in the foreseeable future because he sent his children to a Christian nursery or because of any perceptions of him arising from this.
The Tribunal notes the reference to claims of imputed political or religious opinion on the basis of his level of western education and as a failed asylum seeker, made on his behalf by his representative in submissions. In relation to the claim based on his level of western education, the applicant has not provided any evidence that he has undertaken any education in the period he has been in Australia and the Tribunal is not satisfied, therefore, that he faces a real chance of serious harm upon return to Pakistan on this basis. In relation to his fear of harm as a failed asylum seeker, having regard to the independent information referred to in the DFAT report above (paragraph 33), and that the applicant departed Pakistan lawfully on a valid passport and there is no evidence before it to suggest he committed any immigration or other offences, the Tribunal is not satisfied that he faces a real chance of serious harm upon return to Pakistan on this basis.
The Tribunal has carefully considered independent evidence regarding security and violence in Pakistan generally. As referred to in the independent information above, the Tribunal accepts that Pakistan has for some time, and continues to, face security threats from terrorist, militant and sectarian groups. It accepts, as the independent information indicates, that people at large feel a sense of insecurity as a result of incidents of terrorist and sectarian violence. However, a number of sources confirm that the overall security situation has significantly improved in recent years, particularly since the commencement of counter-terrorism military operations from mid-2014, which is responsible for a substantial reduction in the number of sectarian and terrorist attacks and generalised violence throughout the country.
The Tribunal has considered DFAT’s assessment that Punjab remains relatively free of sectarian and generalised violence (at paragraph 2.30 of its 2016 Country report)). The Tribunal also accepts that, despite this overall downward trend in violence, and the relative safety in Punjab, there have been a number of significant security incidents in 2015, including in Lahore. The targets of the majority of these attacks, however, appear to be security forces, law enforcement, members of sectarian groups and/or minority communities and other specifically targeted groups none of which the applicant appears to come within.
Having considered the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution because of his period of overseas residence, and/or the perceptions of his adherence to his Muslim faith arising from this, or for any other Convention based reason.
Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary Protection criteria
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are 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 she will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Pakistan, the Tribunal is not satisfied that there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Pakistan.
In addition to the applicant’s oral and written evidence, the Tribunal has carefully considered independent evidence regarding security and violence in Pakistan generally. As referred to above, the Tribunal accepts that Pakistan has for some time, and continues to, face security threats from terrorist, militant and sectarian groups and that people at large feel a sense of insecurity as a result of incidents of terrorist and sectarian violence. However, as also indicated above, various sources confirm that the overall security situation has significantly improved in recent years, and there has been a substantial reduction in the number of sectarian and terrorist attacks and generalised violence throughout the country. The Tribunal has also observed that despite the overall downward trend in violence and the relative safety in Punjab, there have been a number of significant security incidents in 2015, including in Lahore. Having regard to this information, in respect of the claim of fear of harm from generalised violence, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is not taken to be a real risk of significant harm in respect of him under s36(2B) of the Act.

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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Meena Sripathy
Member

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.
Refugee criterion
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.

Pakistan 2001-2014, 22 May 2015, Watson Institute for International Studies, Brown University,
page 10,

[2016] AATA 3542

3 March 2016

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