1419288 (Refugee)

Case •

[2018] AATA 282

•

24 January 2018

1419288 (Refugee) [2018] AATA 282 (24 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419288

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Paul Windsor

DATE:24 January 2018

PLACE OF DECISION:  Melbourne

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

(i)that Applicant 1 satisfies s.36(2)(aa) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(c)(i), on the basis of membership of the same family unit as the first named applicant.

Statement made on 24 January 2018 at 3:43pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Criminal charges – Police corruption – Torture for confessions – Bond for bail – Appeal disposed – Death penalty – Complementary Protection

LEGISLATION
Migration Act 1958, ss 36, 65, 424A, 499
Migration Regulations 1994 Schedule 2, r 1.05A

CASES
MIAC v SZQRB [2013] FCAFC 33

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] September 2013 and the delegate refused to grant the visas [in] November 2014.  Applicants 2 and 3 applied as members of the family unit of Applicant 1 who are not making their own claims for protection. 

  3. The delegate found that Applicant 1’s claims do not have a Convention nexus and therefore considered them only against the Complementary Protection provisions.  The delegate accepted that: Applicant 1 was charged and acquitted of the murder of his [Relative A] and that his [Relative B] appealed this decision; at the time Applicant 1 departed Pakistan the appeal was ongoing and; Applicant 1 may have been harmed by the police at the time of his arrest.  The delegate did not accept, however, that: Applicant 1’s [Relative B] will harm or kill him if he returns to Pakistan; the appeal against the acquittal is ongoing; Applicant 1 would be of interest to the Pakistani authorities or; Applicant 1 would be harmed by police should he return to Pakistan.  In light of these findings, the delegate refused to grant the visas as she was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Applicant 1 being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.   

  4. The applicants applied to the Tribunal for review of this decision on 25 November 2014.  The applicants provided the Tribunal with a copy of the delegate’s decision record.

  5. The applicants appeared before the Tribunal on 3 November 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  6. 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.

  7. 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).

  8. 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.

  9. 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’).

    Mandatory considerations

  10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  11. Applicant 1 claims to be a citizen of Pakistan who was born in Karachi in Sindh province Pakistan on [date].  Applicant 1 indicates that he is a Muslim and that he speaks, reads and writes English and Urdu.  He states he has never married or been in a de facto relationship.  He indicates he departed Pakistan legally [in] May 2010 and arrived in Australia [the following day], entering on a Student visa[1].  Included in the application as members of the same family unit who do not have their own claims for protection are Applicant 1’s mother (Applicant 2), born [on date] in Karachi Pakistan, and his younger brother (Applicant 3), born [on date] in Karachi Pakistan[2].

    [1] See folios 8-15 of Departmental file [number].

    [2] See folios 19-26 and 28-29 of Departmental file [number].

    Summary of claims from the Protection visa application

  12. Applicant 1’s claims were set out in a statement dated [in] September 2013[3] which was included with his Protection visa application.  His claims are summarised as follows:

    ·He was detained by police in Karachi [in] September 2008 in relation to the death of [his Relative A].

    ·He was beaten by police who wanted him to confess to the [crime].  They blindfolded him and took him to another place.

    ·[The following day] he realised he had been taken to the anti-violent crime cell.  He saw a man there who later appeared in court as one of the witnesses against him.

    ·He was hung upside down and beaten.  He was tortured and beaten for an entire night.  He was beaten again the next night and pushed to confess to the [killing].

    ·On [a later date in] September 2008 he was produced before [Court 1] where he said he had been falsely implicated in the case and was innocent.  He was charged and they asked that he be kept in custody.  He was later shifted to [Jail 1 in] Karachi where he spent [time period].  He was physically and mentally tortured in jail and not allowed to see his parents.  People tried to prevent his father talking to him when he was in court.  His father [died from his medical condition].

    ·He was found not guilty and the court ordered his release.  However, the complainer appealed to [Court 1].  This is still pending.

    ·As soon as he was released he came to Australia to make sure nothing else goes wrong.  People came to his home legally and illegally treating his parents roughly and asking them to call him home so the case can continue.  He has attached a picture from the [Court 1] [website] which indicates the case is pending and the dates.

    ·His father passed away but he could not return to Pakistan to go to his father’s funeral.  He is afraid that he would be returned to custody.

    [3] See folios 16-18 of Departmental file [number].

  13. The applicants attended an interview with the delegate [in] April 2014.  [In] April 2014 the interviewing officer requested that Applicant 1 provide evidence to support his claim that his acquittal in relation to the murder of his [Relative A] was still pending an appeal[4].  Applicant 1 responded [in] May 2014 indicating that he was unable to obtain documents regarding the status of the case[5]. 

    [4] See folios 135-136 of Departmental file [number].

    [5] See folios 140-142 of Departmental file [number].

  14. [in] September 2014 the Department wrote to Applicant 1 seeking his comment on information before the Department that his case was dismissed [in] March 2013 and therefore is no longer active[6].  Applicant 1 responded [in] October 2014 commenting that he does not know if the matter has been dismissed in his favour or if it has been temporarily dismissed on the basis that he has not been in Pakistan for the past 4 years.  Applicant 1 also commented that the complainer (his [Relative B]) may seek to appeal to the Supreme Court as it is a personal grudge because he did not confess to the crime of killing his [Relative A] as the police had wanted him to.  He commented that his [Relative B] wants revenge and is financially strong.

    [6] See folios 144, and 148-150 of Departmental file [number].

    Evidence from the hearing of 3 November 2016

  15. At the hearing the Tribunal spoke first with Applicant 3, who has applied as a member of the same family unit as Applicant 1 (his brother) who does not have claims of their own for protection.  Applicant 3 said the family lived in [an] apartment/flat in the Karachi suburb of [Suburb 1].  He said the area is home to a mixed sort of community with some rich and some poor residents.  He indicated that their apartment block was surrounded by low walls but said there are gates on both sides and anyone can walk in at any time.  He indicated there is a watchman but there is no intercom or registration system.  He said it is common to have a watchman in Pakistan to be at the gate and see who is coming and going but commented that the gate is mostly open, they just sit around, and anyone can bribe them and come in.  He indicated that the watchmen also wash resident’s cars and operate the water pump.  He indicated that the family still has the apartment but it is vacant rather than leased out as they do not have anyone to look after it and do not wish to risk someone taking it over.

  16. Applicant 3 indicated he came to Australia in September 2009 to study.  He said he is currently undertaking a [course] which he is due to complete in 2018.  He commented that he came to Australia because his [Relative B] used to threaten the family and send people to their home.  He said it was pretty risky, he wasn’t allowed to go out of the house so the best option was to come to Australia.  He said they could not seek assistance from the police because the police had been bribed and influenced by his [Relative B].  He said his [Relative B] was a landlord and in [a specified industry] and is rich.

  17. Applicant 3 indicated that he returned to Pakistan in April 2012 because his parents were both unwell and his mother was to have an operation.  He said he stayed longer than intended because his father passed away.

  18. Applicant 3 indicated that his father funded his study.  He said his father had a [service] business ([named]).

  19. Applicant 3 indicated that he did not know his murdered [the named Relative A] that well.  He said they usually met once a month at [a relative’s] house.  He indicated that [Relative A] had an elder sister but, when asked, said his brother (Applicant 1) did not have any interest in her at all.

  20. Applicant 3 spoke of the family’s movements in the period immediately before [Relative A’s] body was found.  He indicated they went to the mosque for special prayers as it was Ramadhan and got home late in the evening, ate and then retired before waking early for a pre-dawn meal and sleeping again.  He said it was Friday and he [and family members] went for prayers and then [Relative B] called to say he was missing.  He said there was another call to say [Relative A’s] car had been found and his [family members] went out and [the] body was found in the car.  He said his father went to the hospital in an ambulance with the body.  He indicated that family members went to [Relative A’s] house all night until the body was buried and then returned to [Relative A’s] house where his mother stayed to comfort her [relatives].  He indicated he, [with some family members] returned to their home where they slept.   They were woken by police officers who wanted to take him and his brother to the local [Suburb 1] police station for inquiries.  He said their father accompanied them.  He said he was separated from his brother and had no contact with his father, and his mobile phone was taken.  He said they then released him without asking him any questions.  He indicated he was not mistreated.

  21. Applicant 3 said his brother was taken to another police station and they were not allowed to see him or have any contact with him.  He said his brother was tortured and badly beaten and because he was young and was tortured badly he said he did it (murdered his [Relative A]) even though he didn’t.  He indicated that after some days his brother was transferred to [Jail 1] where he was held on remand.  He said they engaged a lawyer ([Lawyer 1]) and the family could meet with the applicant on special request, once or twice a week.

  22. When asked why [Relative B] thought his brother was guilty of the crime Applicant 3 said the police convinced him.  He commented that the police are corrupt and they knew his [Relative B] was rich and could pay and said his brother was guilty to save time and get the money.

  23. The Tribunal asked Applicant 3 what he thought had happened in relation to his [Relative A].  He said his [Relative A] was friends with very rich kids, one of whose father had political connections.  He said his nephew and his nephew’s friends had been fighting among themselves and that one of his friends was also arrested on the same charge but because of his connections his father was able to bribe the police and get him off.  He added that his family were not rich enough to bribe the police.  Applicant 3 said that while his [Relative B] was aware of the other arrest the police convinced his [Relative B] that his brother was guilty, because it was an easy money making business for them.  He indicated that police constructed a case against his brother even though there were witnesses who had seen them at the mosque.  He said they fought the case in court and some of the witnesses testified.  He commented that the prosecution claimed his brother was having an affair with his [Relative A’s] sister but it was not the case.  He indicated that after his brother was acquitted and released from prison his [Relative B] was not happy with the decision.  While he was in Australia at that time he knows that his [Relative B] continued sending people to their home and bribing police.  He said there were lots of threats against his brother and a risk that he would be harmed so he stayed at home and did not go out.  He said after some time his brother came to Australia.

  24. Applicant 3 said he did not know when the appeal against the court’s decision was lodged but said he thought his brother had appeared in court on one occasion in relation to this.  He said he thought the case was still going on and that his mother had given a PKR [amount] bond for bail.  He said there were some dates set but his brother has been in Australia.  He said the matter could restart anytime and his [Relative B] can appeal in the Supreme Court.  He commented that his [Relative B] will use his connections to threaten, harass and harm them.

  25. The Tribunal then spoke with Applicant 2 (Applicant 1’s mother), who has also applied as a member of the same family unit who does not have claims of their own for protection.  She indicated that her husband’s business had been reasonably successful and that is how they could afford to send their younger son for an overseas education.  She said they invested a lot to send him overseas because they were very scared due to the people [Relative B] kept sending to their residence.  She said he sent police in plain clothes at any time, including the middle of the night, and used people from his village, where he was the village elder, to threaten them and threatened her husband at his office.  She indicated that this was to force them to get their son to confess to the crime.  She said they could not seek assistance from the police as all the police in that area were under [Relative B’s] influence.  Applicant 2 also commented that they needed to fund the defence of the case against her elder son (Applicant 1).  She indicated that [other relatives] helped with that. 

  26. Applicant 2 said she came to Australia about three years ago because she was alone and [Relative B] was pressuring her all the time to call her son back to Pakistan.  She said when her son was acquitted [Relative B] started another case within 10-15 days.

  27. Applicant 2 said her son was beaten by the police and told to accept he committed the murder.  She said that when he refused they raised the matter of [Relative A’s] sister – she commented that the police suggested this.

  28. The Tribunal asked Applicant 2 why she thinks [Relative B] considers her son is responsible for the murder.  She said the victim had gone to dinner with [some] affluent friends, one of whom was the son of a [prominent official].  Her son may have had a phone conversation with the victim because the victim wanted them to go out to celebrate [a] birthday.  She commented that the [rich] kids were also picked up, but were released the same night.  She indicated that the police said the victim had called her son, insisting to see him.  She commented that her son indicated he was stripped naked, hung upside down and badly beaten and forced to say that he had committed the crime when [Relative B] came to the police station.  She indicated that her son was acquitted because they were able to provide evidence that he was at home. She said the lawyers were very expensive and they paid a lot of money commenting that they ‘lost everything in that case’.  She said they had to give money at every step, including to be able to see her son in jail.  She indicated that her [relatives] paid for the applicant to go to Australia to study.

  29. The Tribunal asked Applicant 2 whether they appeared in court in relation to the appeal lodged by [Relative B].  She said they did once.  She indicated that they then sent her son to Australia and commented that the case will re-open when he returns.  She commented that a friend has told her that the watchman has come twice to hand over a summons.  She indicated that her friend declined to receive the summons saying she did not know the applicant’s family.

  30. The Tribunal queried Applicant 2 regarding whether the bond they had paid had been returned.  She indicated it had not been returned and commented that ‘they’ were still pressuring the family and her husband [died from his medical condition].

  1. The Tribunal then spoke with Applicant 1.  He indicated that he had spoken with his [Relative A] on the night [Relative A] went missing.  He commented that they used to meet at [a relative’s] house monthly and were planning to celebrate [a relative’s] birthday there but the [relatives] wanted to go out to a restaurant instead.  He said the conversation started out as messages and then he called his [Relative A] and his [Relative A] called him back.  He said he did not leave home that night and the next morning they went to the mosque to perform normal Friday prayers.

  2. Applicant 1 indicated that when the police detained him and his brother they were separated.  He said his eyes were covered with a black cloth and he was told to tell the police everything.  He indicated that the police had checked on ‘call data listing’ and knew that he had called his [Relative A].  They asked him why he called his [Relative A] and why he killed him.  He indicated he was hit a couple of times and they threatened to put a rat down his pants.  Applicant 1 said he started crying and shouting, asking for his father.  They said his father had left and took him by car to another place.  When the blindfold was removed he saw he was being locked in a small cell.  He was left there until morning.  Applicant 1 indicated that he was hung up and beaten, 4-5 times.  He was told to say to everyone what the police told him to say.  He said he told them he had done nothing and swore on Allah and the Prophet that he had not done anything but still was beaten.  He indicated that he would say ‘okay I did it’ so they would stop beating him and then would withdraw the statement.  He said he was held for up to [number] days and the night before he was to be brought before the judge he was beaten really badly and told he had to say he had confessed to the crime.  They told him to remember he would be coming back to them and he was prepared to say he had done it as he had not seen his father or a lawyer and had no-one to help him.  He indicated he confessed in front of his [Relative B] using the story given to him by police but when he was brought before the judge he told the truth and denied he committed the crime.

  3. Applicant 1 said he was held on remand in [Jail 1] for [period] and a few days.  He indicated that initially his parents were not able to visit him but later they got permission, he thinks by paying some money, and his mother visited him weekly.  Applicant 1 indicated that he had two lawyers representing him during the Trial – the main one was named [Lawyer 1] and another named [Lawyer 2].  He said the trial was held in [a specified court] and he was acquitted.  When asked, he indicated that he told the judge he was beaten and forced to confess but the judge just listened and did not comment.

  4. Applicant 1 indicated that his parents sent his brother to Australia while he was awaiting trial because his [Relative B] was making threats and stating that he would be in prison all his life and his parents wanted to get his brother away from this.

  5. Applicant 1 indicated that his [Relative B] appealed immediately after the acquittal.  He said he was scared and did not want to attend the appeal hearing but he did attend one hearing at the insistence of his parents.  He said they had already lost so much money, his father was ill, his brother was already gone and commented that he was afraid about what could happen next as it is about money and relationships and they can come up with any decision.  He said his [Relative B] wanted to drag it out further.

  6. Applicant 1 said he was not sure what happened when he went to court but indicated that they were expected to appear again.  He said his mother paid a surety.  The Tribunal queried Applicant 1 regarding the advice sent to him for comment by the Department indicating that the appeal was disposed of [in] March 2013, commenting that this sounds like the appeal is over.  Applicant 1 indicated that their neighbours had recently advised that people were trying to serve summons at their residence.  The Tribunal queried Applicant 1 why he could not get his lawyer to confirm this or otherwise get information that confirms whether or not the matter is ongoing or has been appealed to the Supreme Court.  Applicant 1 said that his lawyer [Lawyer 1] was not there for [Court 1] appeal.  He said he did not want to inquire and his [Relative B] still has the Supreme Court option and there may be letters from the Supreme Court but he did not want to know as the consequences had been so bad in the past.  He commented that if he returns to Pakistan his [Relative B] will try at the Supreme Court, if not now then later, and they no longer have the resources to defend him.

  7. Applicant 1 indicated that his mother had not had the bond money returned to her.  The Tribunal queried why he would be allowed to leave Pakistan if he had an outstanding murder charge against him.  He said he just signed something and had no problems travelling to Australia.

  8. The Tribunal queried Applicant 1 that he was acquitted [in] October 2009 and did not depart Pakistan to come to Australia until [May] 2010, but his [Relative B] had not acted over that period to take revenge on him.  He replied that they faced them for seven months.  He said they locked the doors and he did not go out.

  9. The Tribunal also queried Applicant 1 about the delay in him applying for a protection visa.  He commented that his father did not want that and believed the matter would be resolved and everything would be fine, but his father passed away.  Applicant 1 commented that he fears he will be jailed and spend all his life in prison and that he will be tortured again.

  10. Following the hearing on 10 November 2016 Applicant 1 provided a copy of his father’s death certificate confirming that his father passed away on [date] due to a [medical condition], and copies of pictures of the apartment where the applicants lived in Pakistan.  He also included links to a number of news items including regarding revenge killings, the pardoning of accused murderers from wealthy families, police charging a 9 month old infant with attempted murder, and a Human Rights Watch report regarding police abuse and reform in Pakistan[7].

    [7] See folios 35-41 of Tribunal file 1419288.

  11. On 19 July 2017 the Tribunal wrote to the applicants in accordance with the provisions of s.424A of the Act inviting them to comment on information obtained utilising web-based resources to search for court judgements in relation to Applicant 1, information regarding the possible breach of a bond to appear before [Court 1] and any consequential warrant for the arrest of Applicant 1, and any indications of an appeal to the Supreme Court of Pakistan[8].  Applicant 1 responded on 2 August 2017 commenting that his grandfather in Pakistan is against him coming back to Pakistan to face trial again as he can be convicted and sentenced to life in prison or the death penalty due to the nature of his case.  He also commented that he was charged with murder as well as [other charges].  Applicant 1 indicated that he tried getting in touch with his lawyer [Lawyer 2] but was informed that he passed away last year.  Applicant 1 commented that he believes that if he returns to Pakistan there is a strong chance the court may order that he be put in jail so that he does not run or hide anywhere again before the trial commences again.  He reiterated that he fears that if [Court 1] does not convict him his [Relative B] will appeal to the Supreme Court of Pakistan or try some other way to harm him.  He claims he fears he will be subjected to torture again.  Applicant 1 stated that he does not have the courage, stamina, resources or the faith to face the trial again.  He commented that he did not return to Pakistan for his father’s funeral because he doesn’t feel safe there and feels he could easily become subject to torture again.  Applicant 1 also commented that if something happened to him, his mother, who is a widow and has been a housewife all her life, couldn’t ‘do everything by herself’.

    [8] See folios 42-45 of Tribunal file 1419288.

    Findings and reasons

  12. The issues in this review are whether there is a real chance that, if Applicant 1 returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that Applicant 1 will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

  13. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Applicants’ identities

  14. On the basis of the copies of their passports provided to the Department[9] the Tribunal accepts that the applicants are citizens of Pakistan and that their identities are as they claim them to be.  The Tribunal accepts that Pakistan is the applicants’ country of nationality for Convention purposes and is the applicants’ ‘receiving country’ for complementary protection purposes.

    Assessment of claims

    [9] See folios 27-31 of Departmental file [number].

    Refugee criterion

  15. Consistent with the findings of the delegate, the Tribunal considers that there is no Convention nexus to the harm Applicant 1 claims he will suffer should he return to Pakistan. The harm Applicant 1 claims he will suffer is not due to his race, religion, nationality, membership of a particular social group or his political opinion. Accordingly, the Tribunal is not satisfied Applicant 1 is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).

    Complementary protection

  16. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of Applicant 1 being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[10]

    [10] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

  17. Significant harm is defined at s.36(2A) of the Act as follows:

    A non-citizen will suffer significant harm if:

    (a)  the non-citizen will be arbitrarily deprived of his or her life; or

    (b)  the death penalty will be carried out on the non-citizen; or

    (c)  the non-citizen will be subjected to torture; or

    (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)  the non-citizen will be subjected to degrading treatment or punishment.

  18. The court documents provided by Applicant 1 indicate that he was arrested in September 2008, when he was [age] years of age, in relation to the murder of his then [age] year old [Relative A].  He was charged under sections [number] ([specified charge]) and [section] ([specified crime]) of the Pakistan Penal Code.  It is clear that the death penalty applies in relation to both of these offences[11].  Applicant 1 was acquitted of the charges against him in the [specified court], [in] October 2009 and released from custody[12].  [Number of] days later, on [a date in] November 2009, Applicant 1’s [Relative B] appealed the decision of the [specified court] in [Court 1][13].  As indicated above, the delegate accepted that Applicant 1 was charged and acquitted of the murder of his [Relative A] and that his [Relative B] appealed this decision, an appeal that was ongoing at the time Applicant 1 departed Pakistan.  While noting that Applicant 1, having ‘repeated on numerous occasions that he had been tortured by police and that this has caused ongoing [symptoms]’, had indicated that he had not sought professional or medical assistance to manage the symptoms, the delegate also accepted that the applicant ‘may’ have been harmed by the police at the time of his arrest.   The Tribunal also finds that that Applicant 1 was charged and acquitted of the murder of his [Relative A] and that his [Relative B] appealed this decision in [Court 1], an appeal that was ongoing at the time Applicant 1 departed Pakistan.  As discussed further below the Tribunal also finds that investigating police subjected Applicant 1 to treatment amounting to torture in an attempt to get him to confess to the [murder] of his [Relative A].

    [11] See Pakistan Penal Code (Act XLV of 1869) at See folios 65-105 of Departmental file [number].

    [13] See folios 172-178 of Departmental file [number].

  • Significantly, however, the delegate did not accept that the appeal in [Court 1] was still ongoing, finding that the term ‘disposed of’, used by the court in an entry in March 2013, meant that the matter had been finally disposed of and [Court 1] consideration of the case ended.  The Tribunal considers that this finding is critical to this case as it impacts on the delegate’s other findings that she did not accept that Applicant 1’s [Relative B] would harm or kill him if he returned to Pakistan, that he has a ‘profile of interest’ that would bring him to the attention of the Pakistani authorities, or that he will be harmed by the police should he return to Pakistan.

    Is the appeal in [Court 1] still active?

  • As noted above, Applicant 1 claims that while he was scared and did not want to attend the appeal hearing, he attended one hearing of [Court 1] in relation to this matter ([in] April 2010) at the insistence of his parents, before he departed Pakistan for Australia [in] May 2010.  He indicates that a bond of PKR [amount] (approximately AUD [amount] at the current exchange rate) was paid in March 2010 to ensure his attendance at court.

  • The delegate indicated in her decision record of [November] 2014 that a search of the [Court 1] database revealed that the appeal against the verdict was ‘disposed of’ [in] March 2013.  The delegate commented that this information was publicly available and easily obtained and also noted that Applicant 1 had provided at the Departmental interview a print-out of an online search of court proceeding from the [Court 1] indicating a listing date of [a date in] April 2010 for his case[14].  The delegate stated that Applicant 1’s continued assertions that the charges are outstanding cause her to have ‘further doubts about his credibility’ (the delegate had previously expressed ‘grave doubts’ regarding Applicant 1’s credibility because he admitted that he did not declare in his student visa application or in the Form 80 submitted with his Protection visa application that he has criminal proceedings pending – although the claims and supporting documentation in his protection visa application make this clear.  The Tribunal discussed these matters with Applicant 1 at the hearing, commenting that it seems like the appeal has been finalised and that it appears strange that he had not taken action himself, through a lawyer or otherwise, to confirm whether or not there was any legal action pending against him.  Applicant 1 indicated that he did not know the outcome of the case, that neighbours had indicated that people had called at their residence seeking to issue summons, that [Lawyer 1] was not engaged for [Court 1] matter, that he does not want to make inquiries to determine the status of the matter, and that his [Relative B] still has the option to go to the Supreme Court but he does not want to know what is happening because the consequences were so bad in the past and he cannot face this ‘court thing’. 

    [14] See folio 201 of Departmental file [Number].

  • While the Tribunal, like the delegate, was concerned that it appeared that Applicant 1 was well placed to provide definitive information regarding the status of any ongoing legal action against him, and his unwillingness to provide this to the Department and/or Tribunal was difficult to understand, the Tribunal initiated its own further inquiries regarding the meaning of the term ‘disposed of’ in the context of the [Court 1]; whether there are any judgements available in relation to this matter; whether there is any information available regarding a bond or warrant for the arrest of Applicant 1; and whether there is any indication that an appeal had been lodged with the Supreme Court of Pakistan.  As part of these inquiries searches were conducted using web-based search engines, the [Court 1] website, the Pakistan Supreme Court website and the Interpol Red List databases.

  • The outcome of these inquiries supported Applicant 1’s assertion that the term ‘disposed of’ may mean the case is in abeyance as he departed Pakistan in May 2010.  While Applicant 1’s case is noted as ‘disposed of’ with a ‘Disposal Date’ [in] March 2013 on the electronic case file on the [Court 1] website, the matter has also been listed for hearing on multiple occasions since [December] 2015, including on [dates in] March 2017 and [August] 2017.  The case was also subject to various case events in 2016, including an ‘advocate adjournment’ and a ‘discus[sion] with [Court 1]’, indicating that it is a still active matter[15].   No judgements were found in relation to this matter, no information about a bond or warrant for the arrest of the applicant was found and no indications were found of a Supreme Court appeal.

    [15] [Details deleted.]

  • The Tribunal finds that the material subsequently obtained by the Tribunal and put to the applicants for comment on 19 July 2017 indicates that while Applicant 1’s case is noted as ‘disposed of’ [in] March 2013 on the electronic case file on [Court 1], it clearly is a still active matter.  The Tribunal therefore accepts Applicant 1’s claim, reasserted in his submission to the Tribunal of 2 August 2017, that his case currently is ongoing in [Court 1].

    Possibility of being detained if returned to Pakistan

  • Applicant 1 asserts that the case has been ongoing for over 7 years, that his [Relative B] still holds a grudge and wants his revenge, and if he returns to Pakistan there is a strong chance that the court may order that he be put in jail so he does not run away or hide anywhere again before the trial takes place again.  Applicant 1 states he could be subject to torture again and could be subject to the death penalty or at least life in prison for things he never did.

  • As the Tribunal accepts that [Court 1] appeal is ongoing the Tribunal has considered the risk that the applicant would be arrested or otherwise detained, and if so, the risk that he would suffer significant harm, if he returned to Pakistan.  In this regard, the Tribunal has considered an October 2017 article in Dawn newspaper in which it is reported that the Pakistan Supreme Court sitting in Karachi in Sindh province had directed the interior ministry, the National Database and Registration Authority (NADRA) and the provincial home authorities to block the computerised national identity cards (CNICs) of all court absconders because they were failing to appear before the courts to face cases.  It was reported that the court took ‘serious exception’ to the state of affairs in which law enforcement and prosecuting agencies were handling matters relating to the arrest of absconders and that the judges also directed that the bank accounts of absconding persons be frozen and that the attorney general and advocate general should submit compliance reports[16]. 

    [16] ’SC orders govt to block CNIC, freeze bank accounts of absconders’, Dawn, 26 July 2017, type="1">

  • Applicant 1 indicated that his family paid a bond of PKR [amount] to ensure his attendance in [Court 1].  The Tribunal notes information that indicates that bonds are used in Pakistan criminal law to secure release from custody or to require a person to appear in court[17]; that a person may be in contempt of court by not appearing at scheduled court dates, a matter defined in the Pakistani constitution to include a person that ‘abuses, interferes… obstructs… scandalises… [or] prejudices the determination of a matter’[18]; and that the Criminal Code also has a process for issuing a warrant for the arrest of a person in contempt, and a penalty of seven days imprisonment for failing to be examined or produce a document or thing[19].  Given this, the Tribunal accepts as plausible that Applicant 1’s family paid a bond of PKR [amount] to ensure his attendance in Court.  As noted above, the information obtained by the Tribunal did not indicate that there was any information at the time of inquiry ([in] March 2017) regarding a bond (including any bond having been forfeited) or indicating that a warrant for the arrest of the applicant had been issued as a consequence of his having absconded and failed to appear before [Court 1] since his sole appearance [in] April 2010 prior to him coming to Australia in May 2010.  Noting the frustration of the Supreme Court in relation to absconders and the measures that it has directed be taken to ensure that absconders appear before the courts, however (and contrary to the delegate’s findings), the Tribunal considers that the applicant may have a profile of interest that would bring him to the attention of the authorities of Pakistan.  In this regard, the Tribunal finds that there is a real risk, given the applicant’s circumstances as someone who has absconded from a [Court 1] appeal in relation to serious offences of [specified offences] and murder for over seven years, and the measures ordered by the Supreme Court, that the applicant would be detained by Pakistani authorities on his return to Pakistan.  In this regard, the Tribunal also notes the claims by Applicants 1 and 2 that neighbours have advised that people have sought to serve summonses at their residence in Karachi.

    [17] Code of Civil Procedure 1908, International Labour Organisation (ILO), CISEDB50AD498.

    [18] Constitution of Pakistan, 10 April 1973, CISEC96CF14604, s. 204.

    [19] Code of Criminal Procedure 1898 (Pakistan), Organisation for Economic Cooperation and Development (OECD), Asian Development Bank, edition published 2007 as amended 1997, CISFCE36B0478, s. 485. 

  • In reaching this conclusion the Tribunal has considered the delegate’s finding that Applicant 1 confirmed that he did not experience any difficulties departing Pakistan in May 2010, which the delegate considered indicated that he did not have a profile of interest to the government of Pakistan as there were no legal impediments to him departing Pakistan.  The Tribunal has noted that Applicant 1 indicated that he paid a bond as a surety that he would appear before the court.  The Tribunal has also considered DFAT advice that, while the Pakistan government maintains an Exit Control List (ECL) of those wanted for existing criminal offences, the government has downsized the EC; that placement on the list only takes place pursuant to an adverse finding by the courts, tribunals and security agencies; and that listing is limited to three years in duration, or to those who have committed anti state/terrorist activities[20].  Given this advice, the Tribunal considers that it would not be expected that Applicant 1’s name would have been on the ECL at the time he departed Pakistan, given he had been acquitted of the charges against him and therefore was not the subject of an adverse finding by any court, tribunal or security agency.

    [20] DFAT Country Information Report, Pakistan, 15 January 2016, section 5.26.

  • The delegate also found that the delay in Applicant 1 submitting an application for a protection visa after arriving in Australia in May 2010 ‘raises serious concerns about the immediacy, gravity and credibility of his claims to fear harm in Pakistan’.  In considering this matter the Tribunal notes that Applicant 1 came to Australia on a Student visa and subsequently was granted a further student visa valid until [October] 2013.  The applicants applied for protection visas [in] September 2013.  The delegate’s decision record indicates that Applicant 1 advised the delegate at interview that, on his father’s advice, he was seeking to finish his studies and obtain ‘PR’ that way, and that his father had told him that he hoped to be able to resolve the issue with his [Relative B] through the family.  The Tribunal considers this to be a plausible explanation.  The Tribunal notes that Applicant 1 was never unlawful in Australia and therefore was not at risk of being returned to Pakistan.  Significantly, the Tribunal notes that at the time of his father’s death, in May 2012, Applicant 1 did not return to Pakistan (his brother had returned to Pakistan because his mother was ill and was in Pakistan at the time of his father’s death), even though he held a valid Australia Student visa at that time which would have enabled him to re-enter Australia.  The Tribunal accepts Applicant 1’s claim that, if not for concerns that he could be detained for having absconded from the Court and returned to custody and could again be subjected to torture or that he could be harmed by his [Relative B], if he returned to Pakistan, Applicant 1 would have returned to Pakistan at this time.  Having given careful consideration to these circumstances, the Tribunal finds that the delay in Applicant 1 applying for a Protection visa after coming to Australia in May 2010 does not reflect adversely on his claims to fear significant harm in Pakistan.

    Risk of torture on return to Pakistan

  • As noted above, the Tribunal accepts that Applicant 1 suffered treatment amounting to torture at the hands of Pakistani police in Karachi to force him to confess to the crimes of which he was subsequently acquitted.  Having carefully considered the available evidence the Tribunal accepts that Applicant 1 suffered degrading treatment such as being stripped naked, beatings and other treatment amounting to torture at the hands of investigating police who sought to extract a confession from him.  Consistent with Applicant 1’s claims the Judgment of the acquitting judge records the statements of Applicant 1, his father and his [Relative B] that Applicant 1 was beaten, blindfolded, hung upside down with his hands tied behind his back, stripped naked and tortured in an attempt to make him confess to [the crime].

  • In considering Applicant 1’s claims regarding torture the Tribunal has also considered the September 2016 report by Human Rights Watch regarding police abuse in Pakistan[21] submitted by the applicants, which indicates:

    [21] ‘This Crooked System’, Police Abuse and Reform in Pakistan, Human Rights Watch, September 2016.

    Public surveys and reports of government accountability and redress institutions show that the police are one of the most widely feared, complained against, and least trusted government institutions in Pakistan, lacking a clear system of accountability and plagued by corruption at the highest levels. District-level police are often under the control of powerful politicians, wealthy landowners, and other influential members of society. There are numerous reported cases of police extrajudicial killings of criminal suspects, torture of detainees to obtain confessions, and harassment and extortion of individuals who seek to file criminal cases, especially against members of the security forces.

    and:

    Torture and other ill-treatment of suspects in police custody is a widespread problem in
    Pakistan.  Human Rights Watch discovered that such practices include custodial beatings,
    by hand or with batons and littars (strips of leather), the stretching and crushing of detainees’ legs with roola (metal rods), sexual violence, prolonged sleep deprivation, and
    mental torture, including forcing detainees to witness the torture of others.  Custodial
    deaths resulting from torture are not uncommon.  Former detainees often reported long lasting effects including physical pain, disability, and mental stress.

    Police frequently torture suspects to obtain confessions or other information, to coerce bribes, or because of pressure from local politicians or landowners.

  • Additionally, the Tribunal had regard to the following relevant information from the Department of Foreign Affairs and Trade’s (DFAT) 2016 Country Report on Pakistan[22], in relation to the Pakistani police, use of torture, and the Pakistani judicial system:

    [22] DFAT Country Information Report, Pakistan, 15 January 2016.

    Police

    5.6 The police forces of each province act independently of each other, and there are no nationwide benchmarks in terms of training standards and coordination. The Police Act 2002 sought to reform the police by institutionalising oversight by public representatives and an independent prosecution service. However, Parliament diluted these provisions in a series of amendments to the Act in 2004.

    5.7 Although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.

    Torture

    4.10 Section 14(2) of Pakistan’s Constitution prohibits the use of torture to obtain evidence. Pakistan ratified the Convention against Torture (CAT) in 2010. However, Pakistan has yet to pass domestic legislation criminalising torture. There are also credible reports of Pakistan’s security forces using torture. According to the Asian Human Rights Commission, for example, torture is ‘the most common means by which to obtain confessional statements and also for extracting bribes’. Civil society in Pakistan believes false confessions under coercion of torture have contributed to death penalty convictions, and ultimately executions.

    4.11 There are no reliable estimates of the incidence of torture in Pakistan. According to HRCP, there were 47 reported incidents involving torture in custody in 2014. Conversely, the Society for Human Rights and Prisoners’ Aid indicates there were 7,800 cases of police torture in 2014. DFAT has no information on SHARP’s methodology so is unable to comment on the groups most at risk, or provide information about the methods of torture used. In some cases, authorities have taken action against police allegedly involved in torture cases.

    Judiciary

    5.9 The Supreme Court of Pakistan sits at the apex of Pakistan’s judiciary, followed by five provincial and regional high courts and numerous district courts. The independence of Pakistan’s judiciary is enshrined in the Constitution. This independence is evident in Supreme Court-initiated motion inquiries. These inquiries often bring the Court into conflict with the Federal and provincial governments, as well as security forces.

    5.10 There are a range of other courts in Pakistan’s legal system. Although subordinate to the Supreme Court, the Federal Shariat Court (FSC) is a parallel court responsible for ensuring Pakistani laws are consistent with Islamic principles. The FSC has jurisdiction to examine the judgments of lower courts in Hudood cases. In December 2013, the FSC appointed its first female judge, Ashraf Jehan. Pakistan’s Anti-Terrorism Courts (ATCs) prosecute offences under the Anti-Terrorism Act 1997. ATC cases are heard by a senior judge, a judicial magistrate and a Pakistan Army officer. As an alternative to state justice systems, many residents in tribal areas also seek justice through traditional dispute resolution systems.

    5.11 Defendants in criminal trials are entitled to the presumption of innocence and are allowed legal representation, although this is generally at their own expense. Judicial practice in Pakistan tends to favour witness testimony over forensic or other types of evidence. Pakistan abolished trial by jury in the 1960s.

    5.12 Pakistan’s judicial system rarely finalises cases quickly, fairly or transparently. As of January 2015, for example, there were more than 1.7 million cases pending in courts throughout Pakistan. These problems partly reflect the absence of qualified prosecutors and judges. There are also credible reports of corruption within the judiciary, as well as judicial intimidation in blasphemy and other cases, particularly in lower courts. Victims or their families often seek to lodge their cases in the ATCs (by claiming a murder is an act of terrorism against the community, for example) because the ATCs are able to decide cases more quickly than other courts and can hand down harsher punishments.

  • The Tribunal further notes that the 2017 DFAT Country Information Report comments that, according to the Asian Human Rights Commission, around 80 per cent of prisoners in police custody in Pakistan were tortured in 2015[23].

    [23] DFAT Country Information Report, Pakistan, 1 September 2017, Section 4.11.

  • The Tribunal also notes the remarks of the acquitting judge of the [specified court] in his judgement [in] October 2009[24], regarding the weakness of the prosecution case against Applicant 1.  Among other matters, the judge commented that [the] prosecution [failed] to prove how the accused [was] involved in this case when there [was no] eye witness of the incident, no motive [was] available [and there was] no enmity between the Complainant and the [accused] who [were close relations.] [The judge also] commented that evidence was [received from] two witnesses who he described as ‘interested’ parties because of their association with [Relative B,] and was scathing of the investigating police officer (I.O.), commenting that he [had] not properly investigated the case and had not [identified] as a witness nor [traced] the person who was the first informant to the police.  The judge concluded that [the investigation] made by I.O. [was] not only defective and [improper] but [destroyed] the case and failed to reach the real culprits.  [The judge] found him an inefficient officer and his [superiors might] be [informed].

    [24] See folios 65-105 of Departmental file [number].

  • Noting the country information cited above regarding police competence, susceptibility to manipulation, corruption and the commonplace use of torture by Pakistan police to extract confessions and solicit bribes, the Tribunal considers that the acquitting judge’s remarks support Applicant 1’s claims that corrupt police fabricated the case against him and used torture in an attempt to force him to confess to a crime he did not commit, because they were paid bribes by his [Relative B] [who is] a wealthy landlord involved in [a specified] industry, to resolve the case of [murder] quickly.   

  • Having found that there is a real risk that the applicant could be detained by Pakistan authorities should he return to Pakistan, and given the country information detailed above regarding the use of torture by Pakistan’s security agencies including the police, and the applicant’s own account of having been tortured in the past because of the influence of his wealthy [Relative B], which the Tribunal finds to be credible, the Tribunal finds that it cannot rule out the possibility that Applicant 1 would be tortured again if he returned to Pakistan.  The Tribunal finds that it cannot rule out that this possibility would amount to a real risk that Applicant 1 would suffer torture at the hands of Pakistan police should he be returned to Pakistan.

    Fear of harm from the [Relative B]                   

  • In light of the apparent weakness of the case against Applicant 1 it is not clear to the Tribunal why his [Relative B] has continued to pursue this matter (and presumably to be convinced of Applicant 1’s guilt), apart from Applicant 1’s comments that the police convinced his [Relative B] of the applicant’s guilt (having used torture to force Applicant 1 to confess to the crimes in front of his [Relative B] before Applicant 1 was brought before [Court 1] where he deposed that he is innocent and had been falsely implicated in the case).  While the Tribunal’s inquiries have indicated that the matter remains before [Court 1] and has not been appealed to the Pakistan Supreme Court, the Tribunal finds that this remains an option available to Applicant 1’s [Relative B] should the appeal to [Court 1] ultimately be unsuccessful.

  • The applicants have claimed that Applicant 1’s [Relative B] has arranged for people, including corrupt police, to come to their residence to threaten and harass them.  Applicant 3 indicated that this was occurring while his brother was held on remand in [Jail 1] and that he (Applicant 3) came to Australia to study in September 2009 (about a month before his brother was acquitted) because of the threats, commenting that it was ‘pretty risky’ and he wasn’t allowed to go out of the house.  Applicant 3 said after he came to Australia he knows that his [Relative B] continued sending people to their home and bribing police, and making threats against his brother.  Applicant 2 advised the Tribunal that they were very scared due to the people [that Relative B] kept sending to their residence (and her husband’s workplace), including police in plain clothes and people from his home village.  She said this was done in an attempt to get them to force her son to confess to the crime.  Applicant 1 indicated that he fears that if [Court 1] does not convict him his [Relative B] will appeal to the Supreme Court or try some other way to harm him, indicating to the delegate that during the trial his [Relative B] told him ‘there are many ways to sort this out’ and ‘you won’t get out of here’; and stating to the Tribunal that he feared if he returned to Pakistan his [Relative B] may try some ‘other way because when physically there it would be easy to try any cheap tactics’.

  • The Tribunal noted that the delegate commented that while Applicant 1 claimed that his [Relative B] threatened to kill or harm him, Applicant 1 was not harmed in the seven months between when he was acquitted and released from prison [in] October 2009 and when he departed for Australia [in] May 2010.  The delegate stated that the absence of any harmful activity towards the applicant over this period ‘leads me to doubt the applicant’s claims that his [Relative B] has threatened him’.  The delegate also commented that the [Relative B’s] action in appealing the ‘not guilty’ verdict in [Court 1] on [a date in] November 2009 ‘indicates a willingness and patience to resolve the issue through legal channels and the justice system’.  The delegate also commented that the applicants’ home is in an affluent and secure area of Karachi and that an internet search indicates that apartments at the same address were advertised recently as having 24 hour security.  The delegate concluded that given the security provisions of the apartment complex, she did not accept that Applicant two was harassed by undesirables Applicant 2 claimed were paid to harass her. 

  • Given the overall circumstances of this matter, where the [Relative B] and corrupt police have pursued what the acquitting judge found was a very poor case against Applicant 1, the Tribunal found plausible the applicants’ claims that the [Relative B] arranged for people, including corrupt police officers, to harass them at their residence, to encourage Applicant 1 to plead guilty to the crimes that he was charged of, and subsequently, after Applicant 1 departed Pakistan, to encourage his parents to have him return to Pakistan.  In this regard the Tribunal queried the applicants independently at the hearing regarding the location and security arrangements of their residence.  Applicant 3 said they lived in [an] apartment in the Karachi suburb of [Suburb 1].  He indicated the area is a ‘mixed’ sort of community with some rich and some poor residents.  He indicated that their apartment block was surrounded by low walls but said there are gates on both sides and anyone can walk in at any time.  He indicated there is a watchman but there is no intercom or registration system.  He said it is common to have a watchman in Pakistan to be at the gate and see who is coming and going but commented that the gate is mostly open, they just sit around, and anyone can bribe them and come in.  Applicant 2 said it is an okay area with no fights happening but said their flat is an old one which they bought when the children were [age] years old.  She also stated that while there is a watchman who sits on the gate, the gate is left open and he does not check ‘ID’, commenting that that is why they have been ‘tortured’ and adding that hawkers and beggars also come inside.  Applicant 1 also independently confirmed this advice.  After the hearing the applicants submitted copies of some photos of the complex and their apartment, showing the watch-house and (open) gates[25].  Based on the consistent evidence provided independently by the applicants, the Tribunal accepts that people could easily have come to their residence to harass and threaten them.

    [25] See folio 35-39 of Tribunal file 1419288.

    1. While the Tribunal accepts that the [Relative B] has been using the judicial process, it also accepts that he has bribed police, has condoned the torture of Applicant 1, and from the acquitting judge’s decision, appears to have provided false witnesses in an attempt to secure a conviction.  The Tribunal also accepts the applicants’ evidence that the [Relative B] has arranged for people to call at their residence to harass and threaten them.  Given this, the Tribunal considers that while the [Relative B] did not arrange for Applicant 1 to be harmed during the seven month period that he remained in Pakistan after his release from custody in October 2009, there is a risk that he might seek to harm Applicant 1 in the future if he is unsuccessful in achieving the outcome he is seeking through the judicial process.

      Death penalty

    2. As noted above, both the offences with which Applicant 1 was charged carry the death penalty.  While the applicant did not raise the death penalty in his initial claims, he has raised it subsequently.  In this regard, the Tribunal notes that at the time of the Protection visa application, there was a moratorium on the use of the death penalty in place in Pakistan.  Various reports indicate that Pakistan lifted the moratorium in December 2014, following a mass casualty terrorist attack on schoolchildren in Peshawar, firstly in relation to terror-related cases and subsequently (in March 2015) in all capital cases.  Since that time it has been reported that Pakistan has become the third most prolific executioner in the world, after China and Iran[26].

      [26] ‘Pakistan and the Death Penalty’, The Diplomat, 21 April 2016, >

      In its 2017 Country Information Report on Pakistan, DFAT comments that around 430 people have been executed since an unofficial moratorium on executions was lifted in December 2014, including more than 40 people executed since the beginning of 2017.  DFAT indicates that the vast majority of these had been convicted of murder or terrorism-related charges.  DFAT also commented that many of those executed were reportedly convicted in trials that did not meet international standards for fair trials[27].

      [27] DFAT Country Information Report, Pakistan, 1 September 2017, section 4.8.

    3. While the applicant has not been convicted of a capital offence at this stage, the Tribunal notes that if the applicant’s acquittal was to be overturned by [Court 1] and he was found guilty of the crimes he was charged with in 2008, the death penalty could apply.

      State Protection

    4. The delegate stated in her decision record that ‘Country information indicates that state protection is available in Pakistan with an effective criminal justice system’ and commented that Applicant 1, by his own admission, had not attempted to seek the protection of the authorities.  In considering this matter, the Tribunal noted that this finding by the delegate is based on consideration of the following advice contained in a 2014 UK Home Office report[28]:

      [28] CIS2F827D91294: UK Home Office, “Country Information and Guidance Pakistan: Background information, including actors of protection, and internal relocation”, UK Home Office, 06 October 2014.

      1.2.1    The reported case of AW (26 January 2011) found that there is ‘systemic sufficiency of state protection’ in Pakistan. Decision makers must, however, assess whether effective
      protection is available in relation to the particular circumstances and profile of the
      person. Any past persecution and past lack of effective protection may indicate that
      effective protection would not be available in the future.

      1.2.2    The country information suggests that whilst there is a fully functioning criminal justice system, the effectiveness of the police varies greatly by district, ranging from reasonably
      good to ineffective. Pakistan’s police system suffers severe deficiencies in a number of
      areas, including equipment, technology, personnel, training, and intelligence capability.
      There have also been reports that the police have often failed to protect members of
      religious minorities and women.

      1.2.3    Decision makers must consider each case on its individual facts. The assessment of
      whether effective protection is available should be considered in relation to the particular circumstances and profile of the person.

    5. The delegate indicated that when asked if he could seek protection from the police Applicant 1 responded that the police are not supportive and it is only with the power of money that people can obtain police support.  The Tribunal finds this to be a reasonable response in the circumstances of this case.  The Tribunal considers that Applicant 1 was stating that he believed there was no point in seeking protection from the police because his experience was that they are corrupt and had tortured him seeking to force him to confess to a crime he did not commit because they were bribed by the applicant’s wealthy [Relative B].  The Tribunal finds that in the circumstances of this case, where the police are the agents of the significant harm feared, and where Applicant 1 has previously been tortured by the police, which his family were not able to prevent, and noting more recent DFAT advice that ‘there are credible reports of corruption in the judicial system, as well as intimidation of the judiciary, particularly in religiously sensitive cases, such as those involving blasphemy[29], the Tribunal cannot find that protection is available to Applicant 1, from an authority of Pakistan, such that there would not be a real risk that he would suffer significant harm, in the form of torture, should he return to Pakistan.

      [29] DFAT Country Information Report, Pakistan, 1 September 2017.

    6. S.36(2B)(a) provides that there is not taken to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. In the circumstances of this case, where the threat of significant harm stems from an ongoing serious criminal matter, the Tribunal considers that the risk of harm extends to all areas of the applicant’s receiving country. As discussed above, the Tribunal accepts Applicant 1’s claim that his case is currently ongoing in [Court 1]. Noting measures that the Supreme Court of Pakistan recently has directed be taken to ensure that absconders appear before the courts, the Tribunal found that Applicant 1, as someone who has absconded since 2010 to avoid appearing before [Court 1], may have a profile that would bring him to the attention of the authorities of Pakistan. Consequently, the Tribunal found that there is a real risk that Applicant 1 would be detained on his return to Pakistan. The Tribunal considers that this could be at any international airport on his return to Pakistan or at any other location within Pakistan where the applicant might be detained due to his CNIC being blocked or his bank account being frozen, as directed by the Supreme Court. The Tribunal considers that there is a real risk this could result in the applicant being arrested and returned to police custody in Karachi. Accordingly, the Tribunal finds that internal relocation to another area of Pakistan would not remove the real risk of significant harm that Applicant 1 faces.

    7. After careful consideration of all the material before it, the Tribunal concludes that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Applicant 1 being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm, in the form of torture.

    8. While the Migration and Refugee Division of the Tribunal does not have jurisdiction in relation to s.36(2C) matters, noting the comments of the acquitting judge in his judgement[30], it would seem that there is little basis for concerns that the ineligibility provision in s.36(2C) might apply in this case.

      [30] See folios 65-105 of Departmental file [number].

      CONCLUSION

    9. For the reasons given above, the Tribunal is satisfied that Applicant 1 is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    10. The Tribunal finds that Applicant 2, who is Applicant 1’s mother, is a member of the same family unit as Applicant 1, noting that since the death of her husband (Applicant 1’s father) in 2012, Applicant 2 is a widow and, having been described by Applicant 1 as a ‘housewife all her life’ (and having not been in paid employment) has become dependent on Applicant 1, who is her eldest son. The Tribunal is satisfied that she does not have a spouse or de facto partner, is usually resident in Applicant 1’s household, and is ‘dependent’ on Applicant 1 (within the meaning of r.1.05A(2)) because she is wholly or substantially reliant on Applicant 1 for financial and psychological support. The Tribunal finds that Applicant 3, who is undertaking full time study and is the son of Applicant 2 and the younger brother of Applicant 1, is also a member of Applicant 1’s family unit, because he is a relative of Applicant 1 who does not have a spouse or de facto partner, is usually resident in Applicant 1’s household and is dependent on Applicant 1 because he is substantially reliant on Applicant 1 for financial and psychological support.

    11. The Tribunal finds, therefore, that Applicants 2 and 3 will be entitled to a protection visa provided the criterion in s.36(2)(c)(ii) and the remaining criteria for the visa are met.

      DECISION

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

      (i)that Applicant 1 satisfies s.36(2)(aa) of the Migration Act; and

      (ii)that Applicants 2 and 3 satisfy s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 1.

      Paul Windsor
      Member




     ‘What is behind Pakistan’s dramatic rise in executions’ BBC News, 16 December 2015.  Sourced at

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