1503815 (Refugee)

[2017] AATA 224

1503815 (Refugee) [2017] AATA 224 (7 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503815

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Roslyn Smidt

DATE:7 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 February 2017 at 12:48pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Business owner – Extortion – Muttahida Qaumi Movement – Protection money – Physical assault – Medical conditions – Third country protection – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is a citizen of Pakistan applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] February 2015. The applicant applied for review of that decision on 18 March 2015.  He was represented in relation to the review by his registered migration agent.

   THE RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

7. 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.

   CLAIMS AND EVIDENCE

   Background

8. The applicant is [an age] year old married man of Sunni Muslim religion from Pakistan. His wife and [number] adult children remain in Pakistan. He lived most of his adult life in Karachi where he owned a shop.

9. The applicant travelled to [Country 1] for about two weeks in March/April 2009. In August 2010 he returned to [Country 1] where he stayed for about five weeks after which he travelled to [Country 2] where he remained for about two weeks. He visited [another country] for about two weeks in May 2014. [In] August 2013 he was granted a ten year multiple entry visa for [Country 2].

10. The applicant was granted an Australia [temporary] visa [in] February 2014. He arrived in Australia [in] June 2014 and applied for protection [in] July 2014.

    Summary of applicant’s claims

11. The applicant claims that he is at risk of being killed or seriously harm by members of the Muttahida Qaumi Movement (MQM) or other criminals who have extorted or attempted to extort money from him in the past.

    Country information

12. The following is intended to provide a context assessing the claims made by the applicant. Unless otherwise stated it is taken from DFAT Country Information Report Pakistan dated 15 January 2016.

13. Pakistan continues to face security threats from terrorist, militant and sectarian groups. Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. Rival political parties in some areas are linked to criminal groups involved in these activities, particularly in Karachi, which is a located in Sindh Province and has a population about 20 million people.

14. Since September 2013, Ranger paramilitary operations aimed at dismantling extensive militant and politico-criminal networks in Karachi and elsewhere have reduced the number of militant attacks and significantly lessened the activities of criminal syndicates significantly. According to official statistics, there was a 73 per cent reduction in the number of target killings and 85 per cent reduction in the number of kidnapping for ransom incidents in Karachi. A recent article in the Spectator[1] confirms that violence and crime have been greatly reduced throughout Pakistan, including in Karachi.

    [1] "Pakistan is winning its war on terror", Spectator, The (UK), 31 December 2016, CX6A26A6E15547

15. The MQM is a registered secular political party which represents “Mohajirs”, Urdu speaking Muslims who migrated from India to Pakistan at the time of partition in 1947. It has considerable support and influence in Karachi. Like other political parties, it has also been involved in extortion, violence and other criminal activities for many years. The MQM has been a particular target of government anti-violence campaigns since 2013 with party leaders being amongst those detained and ordinary members sometimes being subjected to brutal treatment.[2]

    [2] Rangers raid MQM HQ in Karachi, detain member of Rabita Committee, The Dawn, 11 March 2015 accessed  (14 January 2017)

16. Lahore is the capital of Punjab Province. It has an estimated population of 10 million people.  According to DFAT Punjab remains relatively free of sectarian and generalised violence.  While the MQM has a presence in Punjab, it is not a major party in the province and has limited power or influence in region.[3]

    [3] On political parties in Punjab see for example, Punjab: Pakistan's political heartland, Al Jazeera 7 May 2013  and  The changing politics of Punjab Geo TV 14 December 2016 >

    [The applicant’s home town] is a small town near Sailkot in Punjab Province. Sialkot is a large city and a major industrial centre.[4] Reports indicate that MQM has a presence in Sialkot, but not that it has power or influence in the area. According to reports a local MQM leaders was shot and killed in the street in 2014 and the group protested the lack of response from local authorities.[5]

    Claims and evidence provided to the Department

    [4] [Deleted.]

    [5] Sialkot: MQM district vice president Bao Anwar gunned down 10 December 2014 and A storm brewing?: MQM workers protest Sialkot killing, Tribune 10 December 2014 >

    In a written statement dated [in] July 2014 the applicant stated that he had opened a [business] in Karachi in 2008. In the middle of that year he received a handwritten note from the MQM demanding that he pay [amount] rupees protection money every month. With the assistance of a friend he managed to negotiate to pay a gangster called [Mr A] [a smaller amount] rupees per month protection money instead of paying the MQM. The MQM did not approve of this arrangement and sent armed men to his shop to scare him. [Mr A’s] people protected him, but in September 2010 while he was visiting [Country 2] his shop was robbed and his [Relative A] was badly injured. Following this he received several threats from the MQM who said that they would kill him if he did not pay them money. On [a date in] December 2013 some armed men came to his home looking for him. He escaped out the back door. His wife was present at the time and later told him that the men were from the MQM and intended to kill him as he had not paid them. He was scared and left the city. He sent this family to Sialkot and travelled to Australia seeking safety.

17. The applicant attended an interview with a delegate of the Minister of Immigration [in] February 2015. I have listened to the recording of this interview. The applicant’s evidence was sometimes vague and confused. At one time he said that he was elderly and he had had [medical procedure 1] which caused him to experience psychological problems and to have difficulty remembering dates. However, he appeared to understand most of the questions he was asked and to response in a reasonably appropriate manner.

18. When asked why he could not return to Pakistan the applicant said that he had had problems with the MQM who demanded that he pay them [amount] rupees a month.   He could not remember exactly when these demands began, but said that it was some time after 2008. A friend helped him to negotiate with a gang member from the MQM so he had to pay only [a smaller amount] a month. However, he continued to receive demands for [amount] rupees and sometimes he paid that amount.  Other large businesses in the area also paid protection money to gangs.

19. The applicant said that when he and his wife were in [Country 2] in 2010 unidentified masked people came to his shop and demanded [a much larger amount] rupees from his [Relative A] and an employee. They did not have [the larger amount] rupees so the men assaulted them and his [Relative A] was shot in the head. He still has problems because of this injury.

20. When asked if he had any problems following the robbery, the applicant said that he sold his shop and his home and went to live with his in-laws in [his home town]. He also spent time in Lahore and other places. He said that he continued to be at risk of harm in [his home town] because the MQM also had a lot of influence in that area and they wanted to kill him because he was no longer paying them protection money. However, when asked if he had received any threats in [his home town] he said that he had turned off his mobile telephone so that nobody could contact him. 

21. The delegate observed that given the size of Pakistan’s population, the distance between Karachi and [the home town] and Lahore and the years which had passed since he lived in Karachi it seemed extremely unlikely that the applicant would be located and harmed by the MQM if he returned to Pakistan. The applicant said that he feared that someone would recognise him and he would be killed.

22. The delegate noted that the applicant had obtained a multiple entry visa for [Country 2] in 2013 and asked why he had not gone to [Country 2] if he feared for his life. He said that he could have obtained protection in [Country 2], but he had learned that the MQM had people in [Country 2] and he thought the Australia would be better from a Muslim perspective, a weather perspective and a health perspective.

23. When asked, the applicant confirmed that he did not fear harm in Pakistan for any reason other than the risk of harm from the MQM because he had not paid them money which they demanded.

24. The delegate refused the applicant’s application because he did not find him to be a credible witness and did not accept that he feared serious harm in Pakistan. In reaching this conclusion he noted, inter alia, that the applicant had initially claimed that he was attacked in his home in Karachi in December 2013, but he had stated during his interview that he had sold his home and left Karachi in 2010. He also found the applicant’s inability to recall details such as the name of his employees evidence of evasiveness rather than the result of poor memory.  A copy of the delegate’s decision is attached to the applicant’s Tribunal file.

    Claims and evidence provided to the Tribunal

25. On 16 June 2015 the applicant provided copy of a report from [Doctor A] of [a named] Medical Centre. [Doctor A] described himself as a Mental Health Clinician. His report states that the applicant had claimed that he opposed various activities of the Pakistani government. As a result he had been chased by the Pakistani armed forces on several occasions. On one occasion he was captured and held for several hours during which he was beaten. On another occasion he was verbally and physically abused by soldiers and members of a militia who worked with them. The report also states that some of the applicant’s friends had sustained significant injuries and remained in captivity.

26. [Doctor A] diagnosed the applicant as suffering from [two specified conditions] being the most prominent feature of his condition. In [Doctor A’s] view the applicant’s [Condition 1] was the result of both his past experiences and the uncertainty of his current situation. According to [Doctor A], despite suffering from [Condition 1] and [another condition], the applicant presented as “an interpersonally engaged man….[who] was open to discussing his history although it was upsetting to him”.

27. The applicant attended a hearing on 7 December 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages

28. The applicant began by stating that he had not wanted to come to the hearing as he had a [further medical condition], but said that he had come because he had confirmed his attendance. He also stated that his GP had sent him to have [diagnosis] the previous day because of his [condition]. I advised him that I needed some information in order to assess his claim to see if he was entitled to a protection visa so it was important that he try to answer my questions, but if he had problems during the hearing to let me know.

29. The applicant confirmed that he had lived in Karachi for many years until about late 2013 and that he owned large shop in the city from about 2008 until 2010 and that he had faced extortion demands from sometime before 2010. He said that he believed that the extortionists were from the MQM. They left written demands and threatened to kill him if he did not pay them. He always paid and did not experience any serious harm until he went to [Country 2] in 2010. He confirmed that other business owners were also extorted for protection money and said that he was not aware of any reason for the extortion apart from the extortionists desire for financial gain.  He did not report the extortion to the police or anyone in authority because he believed that they were all corrupt.

30. The applicant confirmed that his shop was robbed and his [Relative A] was seriously injured while he was in [Country 2] in 2010. He said that he believed that the robbers were from the same MQM gang that had previously extorted protection money from him. He reported the robbery to the police who took a report but did not do anything.

31. The applicant confirmed that he had sold his home and his business following this robbery. He said that he could not recall the exact date of these sales, probably it was around 6 or 8 months after the robbery and certainly less than a year later. When asked why he had decided to sell his home and business, he said that he had continued to operate his shop after the robbery but the extortionists kept demanding more and more money and he could not afford to pay them. When asked if he or anyone else had been attacked or harmed following his return from [Country 2], he repeated that the extortionists had demanded increasing amounts of money from him. When asked to confirm that nobody had been attacked or harmed in any way he said that the extortionist had been armed when they came to collect the money but nobody had been harmed.

32. I asked the applicant if anyone had come to his home to threaten him after the robbery.  He said that after he had finalised things people came to his home to kill him. He could not recall when this occurred, but confirmed that it was after he had sold his house. When asked where the attack took place, he said that he was at his home. I observed that he had previously stated that he had sold his home. He said that he could not recall exactly but he though his house had been sold at that point. He said that armed people had come to his home to kill him but he escaped. He never returned to the house and later sold it.

33. When asked, the applicant confirmed that these events all occurred within 6 or 8 months of his return from [Country 2]. I noted that he had claimed in the written statement provided with his protection visa application that he was attacked in his home in Karachi in December 2013, but when he was asked about his problems during his interview with the delegate he said nothing about being attacked in his home and he had told me that he was attacked in his home and left Karachi in 2010. 

34. The applicant said that as he had already stated he could not recall dates and that he did not want to recall old memories. He added that I should have a letter from his [specialist] stating that his brain was not functioning. I advised him that I did not have a letter from [that specialist], and only had a letter from [Doctor A], who described himself as a Mental Health Clinician which stated that the applicant had [Condition 1], but said nothing about a brain disorder. He said that he had a lot of medical evidence, but he did not expect it would be believed. I urged him to forward any relevant evidence so that I could consider it.  

35. The applicant said that he had not slept because he had [a different condition] and he was taking tablets. He added that he had a really bad [medical condition] and he could not recall things. I asked when he believed he would be better able to answer my questions. He said that it did not matter when the hearing was held as he would have the same problems. I observed that he appeared to have been able to answer my earlier questions and as it appeared that the situation would not change if we postponed the hearing I would precede with my questions. The applicant responded that for medical reasons he could not provide adequate answers to my questions and he did not want to confuse me. I suggested that I try asking some simple questions. The applicant agreed.

36. The applicant confirmed that he had gone to [his home village] with his family after leaving Karachi. He lived with his in-laws and supported himself with the proceeds of the sale of his house and shop. He said that he had also faced a lot of problems in [his home village] because two people from the gang which had previously targeted him had come to [his home village] and bothered him there.

1. At this point the applicant hung his head, appeared distressed and asked for a break. After he returned from the break I observed that he appeared to be unable or unwilling to answer my questions and that he had indicated that this was because he was suffering from medical problems of some kind. I advised him that I required medical evidence regarding these problems and how they impacted on his ability to provide evidence. I advised him that I would also need to talk to his doctors regarding his medical issues at the resumed hearing and told him that this could be done in person or by telephone.

2. I noted that the applicant had stated that he could not answer my questions in part because he did not want to recall past events. I advised him that I needed additional information in order to assess his claims and I could not wait indefinitely for him to feel ready to provide it. I advised him that if he was not prepared to answer my questions this might cause me to drawn negative inferences regarding his claims. The applicant said that he understood and he could answer my questions, but not immediately as this would cause him stress.

3. A second hearing was scheduled for 19 January 2017. On the morning of the hearing the applicant’s representative sent an email which stated that the applicant would not be attending the hearing.  A Tribunal officer contacted the representative to ask why the applicant was unable to attend. His representative said that the applicant was old and unwell and he wanted the Tribunal to make a decision on the papers.

   CONSIDERATION OF THE APPLICANT’S CLAIMS AND EVIDENCE

   The applicant’s ability to provide evidence

4. During his interview with the delegate and at the hearing the applicant claimed that he had great difficulty recalling past events. He told the delegate he was experiencing psychological problems as a result of past health issues. At the hearing he said that he had difficulty recalling past events because he had [a medical condition] and was suffering from stress. He said that his GP had referred him for [a procedure] to diagnose [this further condition] and claimed to have medical evidence regarding his health problems. However, apart from the certificate provided by [Doctor A] in [June] 2015 he has provided no medical or other evidence to support these claims.

5. The applicant was represented by a registered migration agent and had ample opportunity to provide any relevant evidence regarding his ability to provide evidence at the Tribunal hearing. I believe that he failed to provide any evidence to support his claim that he was unable to recall events accurately for medical or psychological reasons because he is not suffering from a medical or psychological condition which significantly affects his ability to provide evidence to the Tribunal. I believe that he claimed to suffer from these problems in order to overcome problems with the evidence which he provided to the Department and the Tribunal.

6. In reaching this conclusion I have considered [Doctor A’s] letter. As noted above, his assessment does not suggest that the applicant was unable to provide evidence at a Tribunal hearing, on the contrary he notes that despite suffering from [two medical conditions], the applicant was open to discussing his history.

7. I accept that the applicant had a [medical condition] during the hearing and that he was tired and found the experience stressful. I also accept that he had difficulty recalling the precise date of some past events. However, until I pointed out that he had given significantly different accounts of events following the robbery at his shop in 2010, he did not demonstrate any significant difficulty answering my questions and I do not accept that he was unable to recall past events with a reasonable degree of accuracy during the hearing for these reasons.

   Findings of fact 

8. After considering all of the available evidence, I did not find the applicant to be a truthful or a credible witness.

9. Firstly, he has provided different accounts of events following the claimed robbery at his shop in Karachi in 2010. According to his written statement to the Department, he continued to live in Karachi and receive demands for money from extortionists until December 2013 when armed men came to his home to kill him and he sent his family to Sialkot and came to Australia. He told the delegate that he sold his shop and home following the robbery, but said nothing about armed men coming to his home at any time.  During the Tribunal hearing he said that he had sold his shop and home and left Karachi about 6 or 8 months and after the 2010 robbery. Furthermore, despite being asked several times if he had experienced any other problems following the robbery he said nothing about the raid on his home until I jogged his memory by asking if anyone had come to his home. In addition, he first claimed that this raid had occurred after he sold his home, but then said he thought it was before the home was sold.

10. The applicant claims that these discrepancies are the result of poor memory caused by medical and/or psychological problems. However, as discussed above, I do not accept this explanation. I believe that there are significant discrepancies in the applicant’s evidence regarding his location and the events that followed the claimed robbery at his shop in 2010 because he has not provided honest evidence regarding these events.

11. Secondly, there are other discrepancies in evidence provided by the applicant. In his written statement of claims he indicated that he had paid protection money to a named gangster who was not associated with the MQM prior to 2010, but in his oral submissions to the Department he indicated that it was the MQM which had extorted him from the beginning. At the hearing he said that he did not know the names of the people who were extorting money from him, but he believed that they were from the MQM. He said nothing about any problems after he left Karachi in his written evidence to the Department. When questioned about this period by the delegate he said that he was fearful of the MQM in [his home town] but did not claim to have been threatened or harmed during the time he lived there. At the hearing he claimed for the first time that two men associated with the gang which had extorted money from him in Karachi had also threatened him in [his home town].

12. If the applicant had attended the second hearing I would have been able to explore these matters more fully and the applicant would have had the opportunity to provide an explanation for the apparent discrepancies and inadequacies in his evidence. However, despite being advised during the first hearing that I had concerns about his evidence and that I required additional information and might draw adverse inferences if he failed to provide this information, he declined to attend the second hearing and requested that a decision be made on the evidence already provided. In these circumstances, I find these discrepancies in the applicant’s evidence a further indication that he has not provided an honest account of his reasons for leaving Pakistan and seeking protection in Australia.

13. Thirdly, as pointed out in the delegate’s decision, the applicant obtained a multiple entry visa for [Country 2] in August 2013, but despite claiming to be at risk of serious harm at that time he failed to use this visa to travel to [Country 2].  Furthermore, he obtained a [temporary] visa for Australia [in] February 2014 but did not leave Pakistan until [in] July 2014. The applicant told the delegate that he had not travelled to [Country 2] because he had learned that the MQM had a presence there, but also stated that he believed Australia was better in terms of climate and health care. Again, if the applicant had attended the second hearing I would have had the opportunity to further explore these issues with him. However, he declined the opportunity and in the absence of any reasonable explanation for his failure to flee Pakistan in a timely manner, I find the fact that he remained in there for over a year after obtaining a visa for [Country 2] and over 6 months after obtaining a visa for Australia a further indication that he was not fearful of harm in his homeland during that time.

14. In considering the applicant’s claims I have noted the history of persecution and [medical condition 1] set out in [Doctor A’s] letter dated [in] May 2015 which states that the applicant had been involved in anti-government activities and had been detained and beaten because of this. The applicant made no mention of anti-government activities or detention in his written or oral submissions to the Department or the Tribunal. If he had attended the second hearing I would have explored these claims more fully. However, he declined to attend and on the evidence currently before me I am not satisfied that he was involved in anti-government activities or detained as a result of anti-government activities prior to his departure from Pakistan.

    Does the applicant have a well-founded fear of persecution in Pakistan for a Convention reason?

15. For the reasons set out above, I do not accept that the applicant has provided an honest or accurate account of his reasons for leaving Pakistan or not wishing to return. There is no credible evidence before me which suggests that he faced a real chance of serious harm prior to his departure from Pakistan or that he faces a real chance of suffering serious harm for any reason if he returns to Pakistan now or in the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution in Pakistan or that he is a person in respect of whom Australia has protection obligations under the Refugees Convention. He therefore does not satisfy the criteria set out in s.36(2)(a).

    Does the applicant meet the complementary protection criteria?

16. The applicant’s claim for complementary protection relies on the same claims as those put forward in his refugee application. As discussed above, I do not accept these claims. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm and he does not satisfy the criteria set out in s.36(2)(aa).

    CONCLUSIONS

17. 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).

18. 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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. 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

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

    Roslyn Smidt
    Member