1507268 (Refugee)

[2016] AATA 4415

1507268 (Refugee) [2016] AATA 4415 (30 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507268

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:30 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2016 at 4:32pm

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 claims to be a citizen of Pakistan, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] May 2015. The application included the applicant’s wife and child as members of his family unit.

3.     Only the applicant sought review of the decision to refuse to grant the visa. The applicant’s wife and child were not included in the review application. The applicant confirmed in the hearing that he has been separated from his wife for one year and indicated that his wife had taken an intervention order against him. The applicant appeared before the Tribunal on 3 March 2016 and 28 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [family member], [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4.     The applicant was represented in relation to the review by his registered migration agent.

5.     Following the hearing the Tribunal wrote to the applicant on 15 August 2016, in accordance with the requirements of s.424A of the Act, inviting him to comment on or respond to certain information which it considered would, subject to his comments, be reason, or a part of the reason, for affirming the decision under review. The applicant was advised that his comments or response should be received by 29 August 2016 and that if they were not received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. The Tribunal did not receive a response from the applicant or a request for an extension of time in which to provide the comments or response by the prescribed date. As such, the Tribunal has proceeded to make a decision without taking any further action to obtain his views on the information

RELEVANT LAW

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.

Refugee criterion

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.     Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10.      There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11.      Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12.      Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13.      Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14.      Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15.      In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16.      Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

17. 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’).

18.      ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19.      There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

20.      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.

CONSIDERATION OF CLAIMS AND EVIDENCE

21.      The applicant claims to be a citizen of Pakistan who was born on [date] in Karachi, Sindh Province, in Pakistan. According to his protection visa application, the applicant resided [in] Karachi from [year] to May 2008. He completed [number] years education and is fluent in Urdu and English and can speak Malay. The applicant described his occupation before coming to Australia as [occupation] at [workplace] from February 2010 to April 2011. He had previously travelled to [Country 1] on a work visa and resided there from [May] 2008 to [May] 2010. The applicant departed Pakistan legally [in] April 2011.

22.      The applicant presented his claims in his protection visa application [in] February 2014 (folios 1 to 29 and 57 to 70 of the Department [file]), submissions made to the Department including a detailed statutory declaration made by the applicant,  a Departmental interview he attended [in] May 2015 (folio 61 of Department [file]), submissions to the Tribunal from the applicant’s adviser and at his Tribunal hearings on 3 March 2016 and 28 July 2016. 

23.      The applicant claimed he had an ideal life until his [family member], [Mr A]’s marriage. He stated that he was working in [Country 1] and his [family member] was studying in Australia when his parents decided that his [family member] should get married to a girl who they thought was from a “noble” family. However, this nobility turned into a nightmare when their real faces were exposed. Upon hearing the news of his [family member]’s wedding, the applicant claimed that he rushed back to Pakistan to attend the ceremony. He claimed soon after the marriage, his [family member]’s wife’s family started to show their true colours. It came to them as a complete shock when they found that his [family member]’s wife’s family belonged to a religious extremist organisation who is responsible for thousands of deaths in Pakistan. The applicant claimed that his [family member]’s in-laws wanted his [family member] to follow their footsteps but since they belonged to the Shia sect of Islam they refused and their refusal became their greatest sin. He claimed his [family member]’s wife’s family started threatening his family, stormed their home on a number of occasions and physically tortured him (the applicant). Since his [family member] left for Australia and he was in Pakistan, they exposed their anger on him. The applicant claimed that he had also married his [relative] in the same ceremony and both he and his wife came under serious threat. His  wife was very afraid for his life as they used to torture him in front of her when she was pregnant. To avoid this brutal victimisation he applied for a [temporary] visa and came to Australia with a vision to establish his life.

24.      The applicant claimed he was under the impression that all this would fade away as time passed but their atrocities were increasing day by day.  Realising they belonged to a middle class family who have no influence in the local law enforcement agencies, his [family member]’s wife’s family did all they could to finish them all. His father was arrested by the police under their influence and brutally tortured. They “categorically” threatened to kill them all. The applicant claimed he was under immense pressure here in Australia as his parents were all alone to face those beasts but they were thankful that he and his [family member] were not there and were safe and alive. He claimed being a Shia has become an unforgiveable crime in Pakistan which is punishable only by horrific death, either in a bomb blast or in a target killing. There is Shia genocide going on, especially in Karachi.

25.      The applicant claimed he was tortured by his [family member]’s former in-laws on a number of occasions and is lucky to still be alive. He is positive if he goes back his fate will not be different to those who have suffered a brutal and tragic death from these terrorists. Going back would be a death warrant for him. He claimed without any protection he would be an easy target for them to finish him and his family off.

26.      The applicant claimed that he is under constant threat from his [family member]’s former in-laws.  They have physically tortured him in the past and they would not spare him this time. With their connection to banned terrorist outfits, they could do whatever they like to him and there is no one to stop them from doing this. In response to  the question why do you think this will happen to you if you go back?, the applicant stated they belong to the Shia sect and this gives them a motive to kill them. He claimed Shia genocide is at its peak in Pakistan and not a single day passes when you do not hear any Shia being killed by terrorists.

27.      The applicant claimed that he did not think the authorities in Pakistan can provide him protection if he returned there. He claimed the authorities cannot save their high ranking police officers and military personnel. He claimed the police and other law enforcement agencies are under their pocket. They fabricated a case against his father and got him arrested, where he was brutally tortured.

1.I make this declaration in support of my application for a Protection visa.

Background

2.I was born on [date], in Karachi, Pakistan,

3.I went to school [in] [Karachi].

4.I went to college [in] Karachi.

5.I am currently employed at [workplace].

6.My parents are [names deleted].

7.I have one [family member] [Mr A] who lives in Australia.

8.I am married [and] have one child.

9.I am a citizen of Pakistan,

10.My ethnic group is Shia.

11.My religion is Islam.

Why I left my country?

12.I applied for a [temporary] Visa for Australia in Karachi through an agent.

13.On April 20111 flew to Australia by plane on my own.

14. Prior to moving to Australia I lived in [Country 1] for one and a half years in 2008 and 2009. I tried to apply for a [temporary] Visa and paid approximately $[amount] cash to a person [who] stole my money and passport. I had to go to the Pakistan Embassy in [Country 1] to get a new passport. I was not able to study in [Country 1].

15. I have not returned to Pakistan since I have been living in Australia.

16.  My [wife] moved to Australia in 2012 to join me.

Experiences of Persecution

17.          In 2010, after returning to Pakistan from [Country 1] I was living in Karachi and working at [workplace] as a [occupation].

[Mr A]'s  wedding        

18. In 2010, [Mr A] got married in Karachi, His wife's name was [Ms B] who is Sunni.

19. The marriage was very unusual because the families and males and females were separated. 

20. At the wedding I saw [Ms B]'s father for the first time. [Ms B]'s father was surrounded by guards carrying AK-47 guns. I immediately thought [Ms B]'s father was a dangerous man.

21. Three weeks after my [family member] married [Ms B], as our religion allows men to have four wives, he married the women he loved [Ms C],

22. My [family member] then moved to Australia, My [family member] told me that he intended to get [Ms B] a Visa once he moved to Australia.

23. When my [family member] moved to Australia, [Ms B] lived with me, my parents and my wife in [Karachi]. I started to become concerned with [Ms B]'s behaviour when she started abusing and threatening people including my [family member] on the telephone in our house. [Ms B] used to yell at my [family member] and demanded he get her a Visa for Australia otherwise she would harm him or my family.

24. I became very suspicious about the type of person [Ms B] was and family she came from.

25. [Ms B]'s family members including her brother and mother started calling my family and threatening them over the phone demanding my [family member] obtain an Australian Visa for [Ms B]

First incident at my family home

26. In late 2010, one evening, [Ms B]'s mother, [Ms B]'s aunty and her brother came to our house.

27. When they arrived at our house they threatened us saying that [Ms B]'s father was [from] tribal areas and would kill my family unless my [family member] got [Ms B] an Australian Visa. [Ms B]'s family then started to throw furniture around the house and yelled at my family.

Second incident at my family home

28. Two or three weeks after the First Incident, [Ms B]'s family again came to our house.

29. When they arrived they again threatened and yelled at us. This time [Ms B]'s family gave my family an ultimatum and said that if we do not get [Ms B] an Australian Visa within 15 days they would harm us and take [Mr A] back.

Third incident at my family home

30. A week after the Second Incident, [Ms B]'s family came to my family home for a third time.

31. This time [Ms B]'s family member knew about [Mr A]'s second wife [Ms C] and straight away they started to push and slap my mother.

32. I pushed my way to the middle to try to break up argument but [Ms B]'s family started beating me, choking me and threatening me.

33. Whilst they were attacking me they were also threatening me saying that I do not know about power and that they are dangerous and would kill my family.

34. When they were attacking me [Ms B]'s family said that they were in contact with [a] member of Muttahida Qaumi Movement (MQM), a family terrorist and killer who has allegedly killed more than 100 people. [Ms B]'s family said they could call [this person] who would organise for my family to be killed.

35. At this stage I became very afraid for me and my family's life.

36. I decided to move my family from our family home in Karachi because I thought it was not safe. I took my wife to my father in laws place and took my mother to my mother's cousins. I lived with my cousins in another part of Karachi. I did not work for three days and went into hiding because I was scared for my safety because of the threats from [Ms B]'s family.

37. At this stage I also started contacting [Mr A] who was in Australia. I told [Mr A] that [Ms B]'s family was very dangerous and had been threatening our family. I also told him that [Ms B]'s family knew about [Ms C].

38. After I spoke to [Mr A] on the telephone, I came back home and tried to return to normal life. I got my wife from my father in law's place and we started living together at my family home again. I also started working again.

39. [Ms B] was not living at our home any longer because she was living with her mother in [another location in] Karachi.

Fourth incident at my family home

40. One day I returned home from work, I found a suspicious [vehicle] outside my family home. Four men came out of the vehicle and attacked me. I did not know any of these men but suspected they were friends of [Ms B]'s brother.

41. The four men pushed me to the ground and kicked me. I started shouting once I was pushed to the ground. My family heard my shouts and my wife came out and she screamed at my attackers. The attackers warned my wife that if she did not go inside they would also hurt her.

42. The attackers then showed me a gun and asked about my [family member] [Mr A]. They were trying to force me to call [Mr A] and tell him to come back to Pakistan. The attackers said they would not leave my family alone until [Mr A] came back to Pakistan.

43. After the Fourth Incident, that night I decided to never return to my family home again because I did not feel safe there.

44. I again took my wife to my father in laws home because it was safe as it was situated in the middle of the city near a police station and took my mother to her cousin's home. I was living with my cousins and friends in another part of Karachi.

45. I stopped working and started making plans to come to Australia.

Moving to Australia

46. I asked my agent to telephone immigration because I wanted to get my Australian Visa as soon as possible.

47. One week after the Fourth Incident, I received notification that my Australian [temporary] Visa had been approved.

48. Two weeks after obtaining my Australian Visa, on about April 2011, I booked a flight for myself from Karachi to [city].

Attack on my mother and father

49. Approximately two weeks after I arrived in Australia, I received a call from my mother.

50. My mother told me she was distressed because [Ms B]'s family members including her aunty and mother and a man called [Mr D] who I knew to be dangerous gangster came to where my mother worked at [Organisation 1] in [Karachi]. The [organisation] was a place where we kept all our important family documents.

51. My mother told me when [Ms B]'s family and [Mr D] came to the [organisation] they threatened her and pressured her into fraudulently signing documents.

52. My mother told me she was not sure what [Ms B]'s family were after but they kicked her out of the building and told her to never come back.

53. Next day, my father and mother again went to see what was going on at the [organisation]. My mother told me that they found five men in the [organisation] who attacked my father and beat him.

54. My mother then told that she and my father went home.

55. [That] night, my mother told me that a police car came to my family house and the officer started kicking the door. My father opened the door to confront the police officer but the officer handcuffed my father like a criminal and took him away.

56. The officer also told my mother to bring [amount] lacs rupees to [the police] Karachi.

57. My mother told me that they kept my father for three days in a police mobile in the daytime with a mask on his face and at night time they moved him from once police station to the next.

58. My mother told me she had to pay a bribe for my father’s release.

Relocation

59. I am not safe to live anywhere else in Pakistan because I am Muhajir which means that my family are Indian migrants and speak Urdu language.

60. Muhajir people in Pakistan face extreme racism in all other parts of Pakistan except for Karachi. There are no other Muhajir in any parts of Pakistan.

61. Muhajir people have been killed and driven out of their homes because of their Indian descent.

62. I would not be able to move within Pakistan because people who easily identify me as Muhajir because of my appearance and my language.

Fear of persecution

63. If I return to Pakistan [Ms B]'s family and in particular, her father who I believe belongs to a terrorist organisation will kill me and my family.

64. If I return to Pakistan [Ms B]'s family will find me, even if I try to hide because they are well connected and can get information easily,

65. Authorities cannot protect me because they are corrupt, easily influenced and bribed by wealthy people.

Time in Australia

66. In live in Australian with my family, [Mr A] and his family.

67. My [wife] and I work [casually]. My [child] who is [age] years old is scheduled to start [Kindergarten].

68. I am currently studying [courses] and hope to obtain my [qualification] in 2017.

69. I enjoy living in Australia because I feel safe and comfortable here.

28. The primary issue in this review is whether there is a real chance that, if the applicant 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 him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

29.      For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

30.      The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

31.      In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

32.      For the reasons discussed below, the  Tribunal has serious concerns about the applicant’s credibility generally and the credibility of all aspects of his claims regarding his fear of returning to Pakistan.

33.      Firstly, the Tribunal finds that there is a significant discrepancy between what the applicant claimed in his protection visa application and what he subsequently claimed in his statutory declaration which he submitted to the Department, as detailed above. As the Tribunal put to the applicant in the hearing, in his protection visa application he claimed that his [family member]’s wife’s family belonged to a religious extremist organisation responsible for thousands of deaths in Pakistan and that they wanted his [family member] to follow their footsteps but since they are Shia he refused and this resulted in problems for the applicant and his family. The applicant repeatedly referred to his alleged Shia religion as being one of the reasons for the problems with [Ms B] and her family and there was no mention at all about any issues regarding visas or [Ms B] coming to Australia. However, in the applicant’s statutory declaration submitted to Department the applicant’s evidence was that the reason for the problems he and his family allegedly had with [Ms B] and her family were related to her getting a visa to join his [family member] in Australia. Unlike in the applicant’s protection visa application, the applicant did not allude to his fears of harm being related to his alleged Shia faith or his [family member]’s alleged refusal to join his in-law’s extremist activities.  

34.      When this was put to the applicant in the hearing, the applicant responded that all the problems were because of his “Shiism”. He suggested that [Ms B]’s family were not aware of their Shia background and this was only slowly and gradually disclosed to them. The applicant referred to the Shia names on the wall of his mother’s home, as evidence that [Ms B]’s family came to realise they had a Shia background.  The Tribunal finds that this does not explain the discrepancy in the applicant’s evidence regarding the basis for the problems the applicant and his family allegedly experienced, as discussed above. Further, the Tribunal notes the applicant’s evidence that his [family member]’s marriage was arranged between his mother and [Ms B]’s aunt, who worked [with] the applicant’s mother. The Tribunal finds it far-fetched that this [person], who would know that the applicant’s mother is Shia, would arrange a marriage between her extremist Sunni relatives and a Shia or that [Ms B]’s family would have gradually and slowly learnt about the applicant’s family’s alleged Shia background particularly if part of the marriage celebration was held in his mother’s home where these Shia names are allegedly depicted on the walls.

35.      The applicant also explained that he was not aware he had to disclose everything that happened in his life “at the first stage” so that it could be consistent. He claimed he thought he should not raise anything that could cause further problems for his parents because they were already dealing with difficult issues. The applicant explained that when he went to [Organisation 2] he was told that he should disclose everything at the first stage and then his claim will be processed. He stated that he was told that if you mention one point, his application would be processed on this one point so after that he realised he had to say this as well. The Tribunal has considered this explanation but finds it unconvincing given that it does not adequately explain the significant change in the applicant’s evidence regarding the basis for the alleged problems that he and his family allegedly experienced.

36.      Given the substantial difference in what the applicant originally claimed in his protection visa application, as compared to what he later claimed in his statutory declaration, was the catalyst for all the problems he and his family allegedly experienced from [Ms B] and her family, the Tribunal does not accept the applicant’s claims are credible.  

37.      The Tribunal notes the applicant’s evidence in the hearing suggesting that [Ms B]’s family were not aware that his family are allegedly Shia. For the reasons discussed above, the Tribunal finds this claim to be implausible. Further, taking into consideration the applicant’s protection visa application, his detailed statutory declaration and the decision of the Department, a copy of which was provided to the Tribunal, the Tribunal notes that the applicant had not alluded to [Ms B]’s family’s ignorance of his family’s alleged Shia background prior to the hearing. The Tribunal finds that the applicant has embellished this aspect of his claims in an effort to address the concerns raised by the Delegate regarding the implausibility of [Ms B]’s family, who the applicant has described variously as Sunni extremists, Taliban and a powerful Sunni extremist family, entering into a marriage with a family of Shia background.

38.      The Tribunal also finds that there are a number of differences in the applicant’s evidence in the hearing and what he has previously claimed in his statutory declaration that he submitted to the Department which raises further doubts about reliability of his evidence and confirms the Tribunal’s concern about the credibility of his evidence.

39.      The Tribunal notes the applicant’s evidence in the hearing that he saw [Ms B]’s father once, when her father came to see his [family member], as per marriage custom. The applicant stated that [Ms B]’s father came by himself and he never saw her father at any other stage during the marriage. However, in the applicant’s statutory declaration submitted to the Department,  the applicant claimed that he saw [Ms B]’s father the first time at the wedding and he was surrounded by guards carrying AK-47 guns and immediately thought he was a dangerous man. The Tribunal notes the applicant made no mention about him seeing [Ms B]’s father surrounded with guards carrying guns at the wedding, during the hearing. Instead, as stated above, he claimed he saw [Ms B]’s father only the once during the whole wedding when her father came by himself to see his [family member]. While the applicant responded stating that he had mentioned during the hearing that [Ms B]’s father was there and he was definitely with his guards, the Tribunal does not accept that the applicant did raise these details at any time prior to when this discrepancy in his evidence was put to him. The applicant subsequently asserted that he may have made a mistake and that maybe he missed out he was with his guards. The Tribunal does not accept that the applicant’s failure to raise the presence of guards with AK-47’s guarding [Ms B]’s father was a mistake. Rather, the Tribunal finds the applicant’s claims in this regard to be not credible. 

40.      The Tribunal finds the applicant’s evidence regarding the timing of significant events  has also changed over time. In the hearing the applicant claimed that his [family member] was married a second time a week after his marriage to [Ms B]. Yet, in the applicant’s statutory declaration submitted to the Department, he claimed that his [family member]’s second marriage took place three weeks after his first marriage. The applicant also claimed in the hearing that his [family member] returned to Australia a month after the wedding, which would have been June or July 2010 and that [Ms B]’s family made their first visit to his family’s home two months after his [family member] left Pakistan. He claimed a month after that visit, they came a second time and he was not sure but thought the third visit was three months after the second visit. The applicant’s clear evidence was that [Ms B]’s family came three times over a period of nine months. However, in the applicant’s statutory declaration he claimed that the first incident occurred one evening in late 2010, the second incident two or three weeks after the first incident and the third incident a week after the second incident. While the applicant insisted, in response, that whatever happened it was during the nine months he was there and does not remember the dates, the Tribunal finds the discrepancy in the applicant’s evidence particularly in regard to the period of time between each alleged incident raises serious doubts about the credibility of these claims. The Tribunal appreciates the applicant may have some difficulty recalling exact dates and times, however it does expect some consistency in his evidence regarding the timing of these significant and central events.

41.      In relation to third incident at the applicant’s family home, the Tribunal notes that in the hearing the applicant claimed that [Ms B]’s mother and brother came during this visit and her mother started abusing his mother, saying that they had destroyed her life and were not sending her to Australia, and was throwing things such as glasses and vases, and her brother was shouting at him. The applicant also claimed that they wanted to hit his mother but he controlled them. When the Tribunal asked the applicant if they hit his mother, the applicant stated no. However, in the applicant’s statutory declaration he specifically stated that this time [Ms B]’s family members knew about his [family member]’s second marriage and straight away they started to push and slap his mother. He also claimed that when he pushed his way to the middle to break up the argument, [Ms B]’s family started beating and choking him, and while they were attacking him, they were also threatening to kill his family.  The Tribunal does not accept that if the applicant’s mother had been pushed and slapped as the applicant had initially claimed, that he would subsequently claim, when specifically asked, that his mother was not physically harmed. Further, the Tribunal has serious concerns that the applicant would also not raise during the hearing when asked about what happened during this incident, that he was physically assaulted as he  described in his statutory declaration, if in fact he had been.

42.      The Tribunal notes that the applicant claimed in the hearing that after this alleged third visit [Ms B] went to live with her aunt and he and his family continued living in their home and everything was normal until the fourth incident when he saw the car out the front of his house and he was allegedly assaulted. However, as the Tribunal put to the applicant in the hearing, in his statutory  declaration he claimed after the third visit he became very afraid for his family’s life so he decided to move them away from the family home in Karachi because he thought it was not safe. He claimed that he took his wife to his father-in-law’s place and his mother to his mother’s cousin and he lived with his cousin in another part of Karachi. While the applicant responded that he had told the Tribunal this, as it put to the applicant, his evidence in the hearing was that he did this after the fourth incident, and not the third, as he had detailed in his statutory declaration.  The Tribunal notes that the applicant responded that he may have “listed it wrong that it was the third or fourth”.  However, the Tribunal refers to the applicant’s statutory declaration and the fact that he claimed to have moved out of his home a second time after the fourth incident. The Tribunal notes the applicant claimed in his statutory declaration that he returned home after moving his family from the family home after the third incident occurred. He claimed he tried to return to normal life and got his wife from  her father’s place and they started living together at the family home again. Then after the fourth incident, he decided never to return to his family home again and again took his wife to her father home because it was safe and his mother to her cousin’s home and he was living with his cousins and friends in another part of Karachi. However, in the hearing the applicant claimed after the fourth incident when he was attacked outside his home, he sent his wife to her parent’s place and he and his mum went and stayed at his aunt’s home for a few days before they returned to their home and he lived there until he left Pakistan for Australia. The Tribunal finds the applicant’s evidence in the hearing different to what he had previously claimed in his statutory declaration and this raises doubts about the credibility of his claims.

43.      More significantly, the Tribunal finds the applicant has provided inconsistent evidence regarding the alleged incident at his mother’s office, when [Ms B]’s family members and a man he called [Mr E] in the hearing, came and threatened and beat his mother and pressured her into signing some documents, before kicking her out of the building and telling her to never come back. The Tribunal notes in the hearing the applicant claimed that this incident happened while he was in Pakistan. He spoke to the Tribunal in detail about how he had wanted to go to his mother’s office and collect the documents there because in addition to the office being [an Organisation 1] and [other facility] it was also a [certain] bureau so there were documents of other people but he could not because it was not safe.  Yet in the applicant’s statutory declaration he claimed it was two weeks after he arrived in Australia that he received a call from his mother and she was distressed because [Ms B]’s family and man named [Mr D], had come to her office, pressured his mother to sign the documents and kicked her out and told her to not come back. While the applicant insisted in the hearing that he was in Pakistan when this incident occurred, the Tribunal finds it unlikely that if this was the case, that the applicant would have claimed in his detailed statutory declaration that these events occurred after he arrived in Australia. The Tribunal does not accept the applicant’s explanation that he may have mixed things up. The  Tribunal finds it implausible that the applicant would not be able to consistently recall if he was in Pakistan or not when these significant events occurred.

44.      Further, the applicant claimed in the hearing that after his mother was kicked out of her office, his mother went back to her [job] and he went back to work as normal and his mother did not go back to her office until 10 days after he came to Australia and that was when his father was beaten. However in his statutory declaration he claimed that his mother and father went back to his mother’s office the day after she was kicked out of her office and his father was beaten. As detailed above, he specifically claimed the next day his father and mother went to see what was going on at the [Organisation 1] and his mother told him they found five men there who attacked his father and beat him. He also claimed it was [that] night that a police car came to his family house and an officer started kicking the door and his father opened it to confront the police officer but the officer handcuffed his father and took him away. Yet, in the hearing the applicant claimed that it was one and a half or two months after arriving in Australia that he received a call from his mother advising him that his father had been kidnapped. He claimed that his mother told him that people came to the door and asked his father to go with them. The people were in civil clothes and said they were the police but the applicant claimed they may not have been.

45.      The Tribunal has had regard to the applicant’s adviser’s submission regarding the applicant’s health, specifically the serious psychological issues that she asserts he is suffering from. Following the hearing the Tribunal received a copy of progress note made by the applicant’s doctor at [a] Medical Centre from [April] 2014 to [February] 2016.  According to this report the applicant attended the medical centre [in] November 2015 and the reason for contact was “anxiety – generalised”. [In] November 2015 the record shows the applicant visited the medical centre and the reason for contact was insomnia. The final record was for [February] 2016 and it states that the applicant is “[health condition]”. Considering the evidence before it, the Tribunal does not accept that the applicant has been diagnosed with any mental health conditions or the applicant’s generalised feelings of anxiety and insomnia due to the breakdown of his marriage and uncertainty of his status in Australia accounts for the numerous discrepancies in his evidence as discussed above. 

46.      The Tribunal also notes that there appear to be several differences in the information provided by the applicant’s adviser in their submission received [in] March 2016 and the applicant’s evidence. Despite the adviser’s assertion that the applicant’s [family member] left Pakistan with his second wife, the Tribunal notes that the applicant’s evidence in the hearing was that the applicant’s [family member] left Pakistan by himself a month after his marriage to [Ms B] and that he applied for his second wife to come to Australia once the applicant was in Australia, around 2011. The applicant’s adviser also stated in her submission that the applicant had sought refuge from the problems he allegedly faced from [Ms B] and her family by temporarily relocating to [Country 1], however there was nothing in the applicant’s evidence to the Tribunal suggesting that after he returned to Pakistan from [Country 1] in 2010, he returned there, prior to him coming to Australia in April 2011.

47.      The Tribunal has also taken into consideration the applicant’s [family member]’s oral evidence in the hearing but has placed little weight on it given the numerous discrepancies between his evidence and the applicant’s evidence. The Tribunal notes according to the applicant’s evidence, he returned to Pakistan from [Country 1] when his [family member]’s marriage to [Ms B] had already started. He claimed he came in the middle of the marriage, on the second day. However, the applicant’s [family member]’s evidence was that the applicant returned to Pakistan from [Country 1] a week or two prior to his marriage date.  In regard to the applicant’s [family member]’s wife’s family’s religious/political connections, the applicant suggested in the hearing that [Ms B]’s father was Taliban, yet his brother spoke about learning of his wife’s family having a connection to Lashkar-e-Taiba.  In relation to the applicant’s marriage, the Tribunal notes the applicant’s evidence was that his mother saw his wife during a function for his [family member]’s marriage and said she would like him to marry her. He explained that his father and his wife’s father, who are [related], did not like each other and that was the reason he decided to marry his wife because he thought this would bring the families together. The applicant confirmed that his mother and his wife’s father arranged the marriage. Yet, the applicant’s [family member]’s evidence was that their father arranged the applicant’s marriage to their father’s [relative]’s daughter. Further, in relation to the particular incidents when [Ms B]’s family visited his home, the applicant’s [family member] said the first time they came was two or three months after he came back to Australia, the second time was 15 or 20 days later and the third incident was three or four months after the second incident. Whereas the applicant has provided two different time frames, in his statutory declaration the first incident being in late 2010, the second two or three weeks after the first incident and the third incident a week later, compared to the hearing where he claimed the first incident occurred two months after his brother left Pakistan, the second visit a month after the first and the third visit three months after the second visit.  In respect of the incident when the applicant was allegedly beaten by a number of people, the applicant’s [family member] claimed the applicant was with his friend, roaming, somewhere in [location] and a car and bike stopped and three or four guys pushed and beat the applicant. This is compared to the applicant’s evidence that this incident occurred when he returned home from work and several men were waiting outside his house in a car. Finally, in relation to the incident at their mother’s office, the applicant’s [family member] stated that [Ms B]’s family, his aunt and not her mother, went there and they slapped his mother and this occurred two or three days before his father was arrested. He claimed that his father was kidnapped in 2012, during Ramadan and he confirmed the applicant was in Australia at that time.  In contrast, the applicant’s evidence was that his father was kidnapped in 2011 a few weeks after he arrived in Australia, according to his statutory declaration, or a month and a half or two months after he arrived in Australia as he claimed in the hearing. The applicant also claimed that [Ms B]’s mother, as well as her aunty, went to their mother’s office. While the Tribunal notes the applicant’s [family member] responded in the hearing stating that these events happened some years ago, as the Tribunal put to the applicant and his [family member], these are significant events which they each spoke about in some detail and it would expect some consistency in their evidence.  

48.      Based on the numerous inconsistencies and discrepancies in the applicant’s evidence and implausibility of central and significant aspects of his claims, as discussed above, the Tribunal does not find the applicant to be a witness of truth. The Tribunal does not accept the applicant’s claims regarding the problems he and his family had with his [family member]’s first wife’s family are credible. It does not accept that the applicant or his family were threatened by [Ms B] and her family either because his [family member] refused to join [Ms B]’s family in their extremist activities, because his family are Shia or because [Ms B] and her family demanded that his [family member] obtain a visa for [Ms B] to join him in Australia. The Tribunal does not accept that [Ms B]’s family members, her mother, brother and aunty, went to the applicant’s home on three occasions and threatened them, including to kill them, if the applicant’s [family member] did not get [Ms B] a visa or that on the third visit to the applicant’s home, they pushed and slapped the applicant’s mother and beat and choked the applicant. The Tribunal does not accept that the applicant and his family moved away from their home after this alleged third incident or that after they returned home, the applicant was attacked during a fourth incident, when he returned from home and four men, who he suspected were friends of [Ms B]’s brother, were waiting in their vehicle and they physically assaulted him. The Tribunal does not accept that after this incident the applicant and his family members again moved from their home and that the applicant stopped working and subsequently made plans to come to Australia.

49.      Nor does the Tribunal accept that [Ms B]’s family members and a man called [Mr E] or [Mr D], went to the applicant’s mother’s office and threatened her and pressured her to sign any documents and kicked her out of her office or that after this alleged incident, the applicant’s mother and father returned to the office and his father was beaten. The Tribunal also does not accept that the applicant’s father was taken by police or people purporting to be police and that he was detained for three days during which time he was moved around from one police station to the next and that his mother had to pay a bribe for his release. The Tribunal does not accept the applicant’s father was arrested and brutally tortured or that there are any cases against him. The Tribunal has taken into consideration the legal and court documents submitted by the applicant however given the information it put to the applicant in the hearing regarding the prevalence of document fraud in Pakistan and also the Tribunal’s concerns regarding the applicant’s credibility generally, the Tribunal places no weight on these documents.

50.      As the Tribunal does not accept the applicant’s claims regarding the problems either he or his family have experienced in Pakistan from [Ms B] and her family or people associated with them such as [Mr D] or [Mr E], the Tribunal does not accept that [Ms B]’s family have continued messaging or calling the applicant’s mother or that the applicant’s [family member] had received any text messages in Australia. Nor does the Tribunal accept that the applicant’s mother continues to have any problems from [Mr E] or [Mr D] including any cases involving the applicant’s mother or father. 

51.      The Tribunal notes that the applicant’s evidence in his statutory declaration attached to his protection visa application was that he left Pakistan in April 2011 because of the alleged problems he had from [Ms B]’s family. Yet, he did not lodge his application for protection until February 2014. The Tribunal observes that it is well established that delay in applying for refugee status is a relevant consideration. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal finds the applicant’s evidence in the hearing that he did not know anything about seeking protection until some guy told him he could do so unconvincing.

52.      Further, as the applicant confirmed in the hearing, his wife and child returned to Pakistan for his wife’s brother’s marriage in August 2013, and according to the applicant, they extended their stay from one month to three months. The Tribunal notes, as it did in the hearing, that according to the applicant’s wife’s statement submitted to the Department she claimed her father was so concerned about the problems the applicant’s family were allegedly having with [Ms B] that her father wanted her to divorce the applicant and her father only agreed she could continue with the marriage on the condition she came to Australia. The Tribunal finds it implausible, in light of those fairly serious concerns the applicant’s wife father allegedly had, that his wife’s father would want the applicant’s wife to return to Pakistan for her brother’s wedding or that the applicant would let her and his [child] return there if he was concerned for his safety and his family’s safety, as he claimed, even if his wife’s father was wealthy and from a big family and would have organised security for the function.

53.      The Tribunal finds the applicant’s wife and [child]’s return to Pakistan raises further doubts about the credibility of the applicant’s claims regarding his and his family’s experiences in Pakistan and the alleged problems they have had from [Ms B] and her family. This, together with the applicant’s delay in seeking protection until nearly three years after he first arrived in Australia, raises significant concerns about the credibility of the applicant’s claims and the genuineness of his fear. 

54.      Given the above, the Tribunal does not accept that the applicant’s [family member]’s first wife’s family belong to a religious extremist organisation responsible for thousands of deaths or that they are connected to banned terrorists, as the applicant claimed in his protection visa application and statutory declaration, and that this may pose a threat to the applicant in the future. In light of the Tribunals findings discussed above, the Tribunal does not accept that the applicant faces a real chance of serious harm from [Ms B] and her family, particularly her father, for any reason including his alleged Shia religion (which as discussed below the Tribunal does not accept), because he signed the second nikkah for his [family member]’s marriage to his second wife and the family may have seen the papers or for any other reason, now or in the reasonably foreseeable future. Nor does the Tribunal accept the applicant faces a real chance of serious harm from a person named [Mr E] or [Mr D] who allegedly took his mother’s office and is just sitting there, as he claimed in the hearing.

55.      The Tribunal does not accept that the applicant is Shia. The Tribunal found the applicant’s evidence regarding his alleged practice of his Shia faith to be vague and inconsistent. The Tribunal notes according to the applicant’s evidence in the hearing, he was a practising Shia from an early age. He claimed he went to the imambargah every day with his mother after school, before going home, until he was in [grade]^th standard, or [ages], and after that he would go twice a week up until he left Pakistan for [Country 1] in 2008. However, according to the delegate’s decision, a copy of which he provided to the Tribunal, the applicant had given evidence that he only started practising as a Shia from the age of [age]. His evidence was that he was born a Sunni Muslim but decided to follow the Shia faith from the age of [age]. Further, according to the decision, the applicant had stated that he had attended the [name] three days every year as part of Muharram celebrations, which is in stark contrast to his evidence to the Tribunal, as discussed above, that he attended every day until the age of [age] and after that twice a week. The Tribunal also notes that the applicant made no mention in the hearing about his attendance at the [name] imambargah but instead claimed that he went two or sometimes three times a week to an imambargah his father’s friend built, and which he had also helped to make, located [number]km from his house. Yet despite the applicant’s claimed role in assisting to build this imambargah, the applicant was unable to tell the Tribunal the name of the imambargah, suggesting that it may have been [name].

56.      The Tribunal also notes according to the delegate’s decision, a copy of which was provided to the Tribunal, when asked about the difference between Sunnis and Shias, the applicant responded that he had no idea. While the applicant demonstrated some very basic knowledge about the Shia faith in the hearing, the Tribunal found the applicant’s evidence in respect of his alleged religion generally to be vague and lacking in detail and somewhat inconsistent with his level of practice, as claimed in the hearing. The Tribunal notes when asked how he practised his Shia religion, the applicant responded that he prayed in the way they prayed and he had seen them using “things”.

57.      The Tribunal has taken into consideration the applicant’s adviser’s submission received [in] March 2016 in which she noted that the applicant had revealed the names of his mother’s family members and that his grandfather is in fact a Sayid. Given the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept what are essentially unsupported assertions regarding the applicant’s maternal family and ancestry. Similarly, the Tribunal does not accept that the applicant is easily identified as a Shia in Karachi because his circle of friends are Shia as he found life more comfortable to be around his own kind or because his mother is a well-known conservative [person] of the Shia school of thought, which the Tribunal notes was never raised by the applicant himself when asked how he would be identified as Shia.  Based on the Tribunal’s concerns regarding the reliability of the applicant’s evidence, the Tribunal does not accept that the applicant’s circle of friends were Shia or that his mother was [of] the Shia school of thought and that he would be identified or perceived to be Shia for these reasons. 

58.      Based on the inconsistency in the applicant’s evidence regarding his practice of his alleged Shia faith and the applicant’s limited knowledge of the Shia religion, the Tribunal does not accept the applicant is a Shia as he claims. As such, the Tribunal does not accept the applicant’s claims regarding his fears based on his alleged Shia faith are credible or that he faces a real chance of persecution, now or in the reasonably foreseeable future, from [Ms B]’s family, terrorist or extremist organisations, his extended family or anyone else, for reasons of his alleged Shia religion.

59.      The applicant also made claims in the hearing that he was a member of the MQM. The applicant’s evidence in the hearing was that all Urdu speaking people living there are associated with the MQM and his association with the party had been since he was a “kid” . The applicant stated that he was a normal worker of the MQM and a member of the party until he went to [Country 1]. When asked when he became a member of the party, the applicant explained that he was [age] when he became a signed member but before that he had worked for the party, from the age of [age] or [age]. The applicant stated that he supported the party by telling people and organising events. When asked what events he organised, the applicant stated giving out envelopes, distributing flags and telling people about the party.  The Tribunal asked the applicant how often he engaged in these activities and the applicant responded by explaining how he had a close association with the group because he did not have his father around and there were very few Mohajirs living where he did with his mother.  The applicant did not answer the Tribunal’s question. The Tribunal asked the applicant if he experienced any problems as a result of his membership of the MQM or his activities in support of the party. The applicant stated that he was going to school once when the bus he was travelling on was stopped by some people, everyone was made to get of the bus and he was hit with a stone that was thrown by someone.  

60.      While the applicant demonstrated some knowledge of the MQM, the Tribunal does not accept that the applicant’s claims regarding his membership and association with the MQM are credible. It does not accept that the applicant was a member of the MQM in Pakistan or that he is a member of a unit in Australia. Given the Tribunal’s findings above, it also does not accept the applicant’s claims that he contacted the MQM when his father was allegedly detained in Pakistan. The Tribunal notes the applicant did not mention anything about his association with the MQM or his belief that this may increase the harm he fears in either his protection visa application or his detailed statutory declaration. Even if the Tribunal accepts the applicant’s explanation that he did not know that he had to include everything when he made his application for protection, the Tribunal notes the applicant’s evidence that when he sought the assistance of [Organisation 2] to prepare his statutory declaration, he was told to tell everything then, yet this was not included in his statutory declaration. As the Tribunal put to the applicant in the hearing, his membership of the MQM and his related fears was raised for the first time during the interview with the Department, as detailed in the Department’s decision, a copy of which was provided to the Tribunal, and the Tribunal has serious concerns that if he was a member of the MQM and had fears associated with his alleged membership, that this would not have been raised in his detailed statutory declaration as he was advised to do by [Organisation 2]. Further, the Tribunal finds the applicant’s claim in his statutory declaration that [Ms B]’s family had threatened to consult a particular MQM member to kill his family somewhat implausible in light of the applicant’s alleged association with the party since his early adolescence. The Tribunal notes the applicant subsequently claimed that the four people that allegedly attacked him when he came home from work were members of the MQM and had connections with the most powerful people in the MQM. The Tribunal notes the applicant made no mention prior to this late stage in the process that the people who allegedly attacked him were associated with the MQM. Additionally, the Tribunal is concerned that the applicant would refer to the MQM in the context of the harm he fears from [Ms B]’s family in his statutory declaration by discussing the threats they made to use their contact with an MQM member to harm him but would fail to mention anything about his alleged fears as a result of his claimed membership of the MQM.

61.      Based on the above, and the Tribunal’s concerns regarding the applicant’s general credibility, the Tribunal finds that the applicant has embellished this aspect of his claims in an effort to bolster his case.  It does not accept the applicant was either a member or supporter of the MQM in Pakistan, that the applicant had an association with the party since his early adolescence or that he has since become a member in Australia. It follows the Tribunal does not accept that the applicant experienced any problems in Pakistan as a result of his alleged support and membership of the MQM, including facing harassment by the police in Karachi, as was asserted in the submission from his adviser received [in] March 2016. Nor does the Tribunal accept, given its findings above regarding the credibility of the applicant’s alleged problems with his [family member]’s first wife’s family, that [Ms B]’s family threatened to consult a particular MQM member to kill his family or that the people responsible for allegedly attacking him when he returned home from work were MQM workers and had connections with the most powerful people in the MQM, as he claimed in the hearing. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm because of his membership or association with the MQM, or his family’s claimed support of the MQM, now or in the reasonably foreseeable future.

62.      The Tribunal has considered the applicant’s claim that he is Mohajir. The Tribunal refers to the applicant’s statutory declaration submitted to the Department  where he identified his ethnicity as Shia, however it also notes that the applicant claimed in the same statutory declaration that he is Mohajir. According to the applicant’s evidence in his statutory declaration, Mohajirs in Pakistan face extreme racism in all parts of Pakistan except Karachi, which is where the applicant lived and it was for this reason that he could not relocate to another part of Pakistan. The Tribunal notes the applicant did not articulate any personal fears based on his Mohajir ethnicity in either his protection visa application or in his detailed statutory declaration submitted to the Department, referring only to Mohajirs being killed and driven out of their homes because of their Indian descent under the hearing “Relocation” in his statutory declaration.  While the applicant’s [family member] gave evidence about the genocide of Mohajirs in Pakistan and claimed that this was the main issue they were here, and the applicant’s adviser’s submission refers to videos of news reports from the applicant’s Facebook page showing the persecution Mohajirs face in the country, this evidence has not been provided to the Tribunal and there is nothing before it to suggest that Mohajirs are being targeted in the manner suggested by the applicant’s [family member] or his adviser. The Tribunal refers to the country information cited in the delegate’s decision from the Institute of South Asian Studies (ISAI), which reported in August 2011 that there were approximately 7 million Mohajirs in Karachi, accounting for almost 35% of the Karachi population. The Tribunal accepts that there has been violence in Karachi between Mohajirs and Pashtuns, however the country information cited in the delegate’s decision suggests that such violence is politically motivated and primarily between opposing ethnic political parties, such as the MQM, the Awami National Party (ANP) and Jamaat-e-Islami (JI), and even between different factions of the MQM. The Tribunal does not accept that there is a real chance that the applicant would be caught up in such political violence given that it does not accept the applicant is or was a member of the MQM or that he actively supported the party or any other political party.

63.      In light of the information before the Tribunal and the applicant’s own experiences which do not suggest that he experienced any problems in the past in Pakistan because he is Mohajir, the Tribunal does not accept that there is a real chance that the applicant will face serious harm, now or in the reasonably foreseeable future, if he returns to Pakistan for reasons of his ethnicity.   

64.      The Tribunal asked the applicant if he has any concern that the time he has spent in Australia will result in any problems for him or that he will be harmed. The applicant stated if he was a student then there would have been no problems at all but the state he is in now, there are so many problems, so he does not think he will be going back to Pakistan at any cost. The Tribunal notes according to the DFAT report on Pakistan dated 15 January 2016 which it discussed with the applicant in the hearing,  western influence is pervasive in many parts of Pakistan, particularly in large urban centres such as Karachi. Western films and music are widely available and western-branded chains operate throughout Pakistan. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West. The applicant agreed with the country information, referring to his cousin who lives with him in Australia, who returns every year to see his parents. He claimed if someone goes back to Pakistan from Australia and they don’t have any issues, they can go back and live like a normal person but he has so many issues which will put him in trouble. Based on the information before it, and the Tribunal’s findings above regarding the credibility of the applicant’s claims, the Tribunal does not accept that the applicant faces a real chance of serious harm as someone who has spent time in Australia, a western country.

65.      The Tribunal asked the applicant about his alcohol issues. The applicant stated that it is not that he drinks too much but he does drink. He stated that he drinks for relief of his back problem and to release his mind from the tension of the things that are going on for him. The applicant also claimed that he drank alcohol in Pakistan because he had Christian friends. As the Tribunal put to the applicant in the hearing, country information provides that although prohibited in the Quran and legislated against for over thirty years the purchase and consumption of alcohol in Karachi is reported to be relatively commonplace. According to a December 2014 Dawn News article Karachi and the rest of the Sindh province is the only place in Pakistan where one can buy alcoholic beverages rather easily. Licence ‘wine shops’ are a plenty and bootleggers operate freely. The article stated that the consumption of alcohol among large sections across all classes in both urban and rural areas remains to be a common occurrence and habit.  However, more significantly, the Tribunal has taken into consideration the medical report that the applicant provided from his doctor, which states that he is a non- drinker and therefore raises concern about the applicant’s claims regarding his alcohol consumption. In response, the applicant stated that his doctor is a Muslim and he has not told him drinks alcohol and the tablets he takes cannot be mixed with drinks so he just tells the doctor he cannot sleep because he is away from his wife and child. The applicant stated that he told everything to his doctor except that he drinks alcohol because he is a Muslim and has a big beard and he believes it is not a good thing to tell someone who looks so Muslim such a thing.  The Tribunal finds the applicant’s evidence that he has allegedly not told his doctor the truth about his consumption of alcohol raises serious concerns about the applicant’s credibility. Even if the Tribunal accepts that the applicant may consume alcohol, as he claimed to have done so before coming to Australia, in light of the volume of alcohol consumed in Karachi, and the fact the applicant has not claimed to have experienced any problems  as a result of his consumption of alcohol in the past, the Tribunal does not accept the applicant faces a real chance of serious harm if he returns to Pakistan and continues to purchase and consume alcohol.

66. Considering the applicant’s claims cumulatively, based on the Tribunal’s findings above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution at the hands of his [family member]’s first wife’s family or people associated with her family, including religious extremists or political assassins, for reasons of his alleged Shia religion or because he signed the second nikkah for his [family member]’s marriage to his second wife and the family may have seen the papers or because a person named [Mr E] or [Mr D] allegedly took his mother’s office and is just sitting there. Nor is the Tribunal satisfied the applicant has a well-founded fear of persecution as a Shia, as a member or supporter of the MQM, as an ethnic Mohajir or as a person who has returned from a western country or a person who consumes alcohol. It is therefore not satisfied the applicant 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 obligations

67. 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 the applicant 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.

1. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings and reasons of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

2. On the basis of the Tribunal’s earlier findings and reasoning’s that the applicant’s refugee claims are not credible, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan , there is a real risk that the applicant will suffer significant harm from [Ms B] and her extremist family, extremist or terrorist organisations, people associated with [Ms B]’s family including MQM members or a person named  [Mr E] or [Mr D] or anyone else because of the alleged problems he experienced from his [family member]’s first wife and her family, his alleged Shia religion and his alleged membership and support of the MQM.

3. The Tribunal has taken into consideration the applicant’s delay in raising his fears as a Mohajir, in addition to his past experiences in Pakistan which suggests he has not experienced any problems in the past for this reason. The Tribunal is not satisfied r on the basis of the findings and reasons discussed above, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk he will suffer significant harm as an ethnic Mohajir.

4. Similarly, the Tribunal finds on the basis of the country information cited above and the applicant’s individual circumstances as found above, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm due to his presence in Australia or because of his claimed consumption of alcohol.

5. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that he will be arbitrarily deprived of his life; that the death penalty will be carried out on him; or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

6. 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).

7. 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).

8. 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

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

   Sydelle Muling
   Member