1509905 (Refugee)

[2015] AATA 3511

1509905 (Refugee) [2015] AATA 3511 (18 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509905

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:18 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 18 September 2015 at 5:19pm

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 [in] July 2015 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] March 2015 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal on 10 September 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.  The migration agent did not attend the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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, he or she 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.

6. 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 because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

11. The applicant claims to be a citizen of Pakistan who was born on [date] in Karachi, Pakistan. According to his protection visa application, he is fluent in Urdu and English. The applicant last arrived in Australia on a visitor visa [in] August 1996. He departed Pakistan legally [in] August 1996. He stated he began a relationship with his partner [in] June 2005 and they were separated [in] January 2014 in Sydney.

12. The applicant presented his claims in his protection visa application [in] March 2015 (folios 28 to 65 of the Department File[number]), a submission from his previous adviser, a Departmental interview he attended [in] April 2015 (folio 91 of Department File [number]), submissions to the Department and Tribunal from his current adviser and at his Tribunal hearing on 10 August 2015.  The following is the statement made by the applicant attached to his protection visa application:

    MY CLAIMS FOR PROTECTION

    MY FAMILY BACKGROUND

    1.       My name is [name].

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

    3.       My residential address in Australia is [address].

    4.       I have no address in Pakistan, as, in a way, now, I am stateless person.

    5.My only living brother is Australian citizen. My father and two sisters have deceased. My brother has applied for my mother to come to Australia, and once she is here, I will not have any other relative in in Pakistan.

    MY EDUCATIONAL BACKGROUND

    6.       I completed graduation in Pakistan

    MY EMPLOYMENT BACKGROUND

    7.I have owned my firm [Company 1] in Pakistan which provided [specific services] to multinational companies. In Australia I established a company with the same name as well as worked in [the related] industry.

    MY RELIGIOUS BACKGROUND & MY PROBLEMS DUE TO THIS BACKGROUND

    (*nothing was included under this heading)

    MY DECISION TO RESIDE PERMANANTLY IN AUSTRALIA

    8.       I came to Australia in 1996.

    9. I was running a company in Pakistan during this time called [Company 1] providing [services] to multinational companies such as [Multinational 3], [and another multinational] in Pakistan. We were getting lucrative deals such as to supply [products] all around the country for [Multinational 3]. I had previously worked for [a similar company] and was quite knowledgeable in [these service areas].

    10.In 1997 I applied for a [temporary] visa in Australia. I started to work in related [industry] employers to gain experience and formulate my own business plan. By the time of the expiration of my [temporary] visa, I had come up with a business plan to totally commit myself in Australia. I somehow made my partner in Pakistan agree to part with my share of the business agreement with [Multinational 3]. That would have generated sufficient funds for me to apply for permanent residency in Australia as an investor.

    11.Problem started when I was asked to show my financial situation and documents in this regard. I realised that my friend has defrauded me and that I was without any money, left to feed for myself, without being able to get the visa. So I came from an affluent position to a pauper status, unable to meet my daily expenses.

    12.In 2005 I met my [wife] and got married. I somehow managed to gather myself from the chaos I was in and opened up a company with the same name [Company 1]. However, my business could not wither the complications of the Australian system, and somehow again fell short, with some taking my business ideas fraudulently.

    13.In 2010, with 3 or 4 segments of my business model stolen and my last effort with [another company], to start another business failed, and my sister died and my wife devastated over the death of her father, I did not know what to do. I felt deflated and depressed with my relationship with my wife strained.

    14.I could not believe my situation, a person with integrity and honesty and facing all the restrictions and my hard work of 19 years all washed away.

    15.So I was faced with the reality for the first time after coming to Australia, to go back to Pakistan. But I could not do. The reason being that I came here mainly to avoid problems in Pakistan, such as being tortured or killed. This is because there had been political attacks on my family due to my association with the political party MQM. I left from Karachi to Islamabad after 1992 mainly to avoid being a target of political killings. I was a well- known activist. I started when I was quite young, teaching at the coaching centre run by the party and actively engaged in its welfare activities. I was well known in the area for working with under privileged children in the area. I also worked with [a famous campaigner]. My brother-in-law's brother was also killed. Due to threats to my life and due to these murders I left my hometown Karachi to move to Islamabad.

    16.In these circumstances I cannot even think of going back to Pakistan to face the nightmare I went through then.

    17.I decided to apply for protection in Australia as I fear for my life is at risk if I go back to Pakistan.

    NO SAFETY IN PAKISTAN AS A STATE

    18.There is no safety in Pakistan as anarchy and restlessness is on the rise and Pakistan as a State does not have enough resources to cope with all these problems.

    19.The police are often helpless and are often scared of political groups, and do not interfere.

    MY APPEAL FOR REFUGE

    20.I would like to request that my application be kindly considered for protection in Australia.

    21.I believe that Australia is a peaceful and peace loving country that guarantees equal rights irrespective of a person's political background. I can live here peacefully and happily without being harmed or threatened by others.

    22.      I strongly believe that my life will be at risk once and if I go back to Pakistan.

13. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm. 

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

15. The delegate had no concerns with the applicant’s identity, noting in the decision record that Departmental records confirm he holds a passport issued by Pakistan.  The Tribunal is satisfied that the applicant is a national of Pakistan and has assessed his claims against Pakistan as his country of nationality. 

16. It was submitted by the applicant’s previous adviser that the applicant is a person to whom Australia has protection obligations for the cumulative reasons of:

    • Political opinion: being a member of the MQM party in Karachi
    • Particular social group : one or more of the following

    (i)People perceived holding views against the State and other various religious parties

    (ii)Vulnerable people being the victim of powerful elements in the society

    (iii)People belonging to a certain party with certain views endangering their lives even within their party.

17. Based on all the evidence before it, the Tribunal has serious doubts that the applicant was a member of the MQM.  According to the applicant’s evidence in the hearing he stated that he first became involved with the MQM when it started in 1983 or 1984 or the mid 1980’s. He claimed, consistently with his statement, that he left Karachi to Islamabad in 1992 to avoid being a target of political killings. However, as the Tribunal put to the applicant in the hearing, also in accordance with the requirements of s.424AA of the Act, according to evidence provided in relation to his application for a [temporary] visa, he had been living in Islamabad since 1985. Specifically, the Tribunal noted that the applicant had provided Character Certificates from the Islamabad Capital Territory Police for both him and his mother, who was included as a secondary applicant, dated [in] 2000 which stated that they had both resided in Islamabad for 15 years.  The applicant claimed that this was the certificate he received after contacting friends in Pakistan to obtain this evidence for him. He stated he did not dictate what was written on the certificate and suggested that the 15 years may have been exaggerated, particularly in relation to his mother. The Tribunal does not accept this explanation given that the Form 80’s completed for both the applicant and his mother, submitted in connection with the application for the [temporary] visa made [in] September 1999, provides his employment history which included his work as a [different occupation] in Islamabad from February 1986. Further, in providing details of the previous addresses they had lived in for 12 months or more during the last 10 years, it was stated that both he and his mother had resided in Islamabad from January 1989 to July 1996.  The Tribunal does not accept the applicant’s claim that as he was the main applicant he probably wrote the same thing in his mother’s form, as what was in his, to save him time or using his head too much.  The Tribunal has also considered the applicant’s response that the information was provided to the best of his knowledge and that there was no sinister intent. While the Tribunal appreciates the applicant’s claim that he may not have been particular when completing the forms and was not cognisant of the possible significance of this information in the future, the Tribunal prefers the more detailed evidence regarding the applicant’s work and residential history included in the applicant’s [temporary] visa application. 

18. However, even if the Tribunal accepts the applicant was a member of the MQM, his evidence was that he did not hold any position in the MQM and did not engage in any political activities in support of the party. Rather, he claimed that he taught or tutored children from [a school] grade every evening for two hours, except for Saturdays, for a period of a year or less than a year in 1982 or 1983. When asked how teaching underprivileged children related to the MQM, the applicant explained that there were other communities in which children had support from their families and institutions but there were other children who were unable to pay for tuition fees and did not have elder siblings or parents who could help them with studies and the tuition centres provided a sense of security for these children. The applicant also claimed for the first time in the hearing that he used to write complaint letters to institutes and letters to the editor on behalf of others in the party. The applicant confirmed in the hearing these letters were not sent under his name but the name of those whom he drafted them for.

19. Further, the applicant’s evidence in the hearing was that once he moved to Islamabad, which the Tribunal finds on the evidence submitted by the applicant in support of his [temporary] visa was from 1985 and not 1992 as he claimed in the hearing, he did not formally support the MQM. He confirmed that he did not engage in any activities in support of the MQM while residing in Islamabad and was not a member of the party.

20. Based on the applicant’s somewhat limited activities in Karachi, which were not really political in nature, over a relatively short period of time, the Tribunal does not accept the applicant was a well-known activist as he asserted in his statement. Nor does the Tribunal accept that the applicant worked with a [famous campaigner], who was killed. The Tribunal notes the applicant did not raise this particular claim in the hearing despite being asked about his activities in support of the MQM. The Tribunal also observes that the applicant did not claim in the hearing that he received any threats to his life whilst living in Karachi, as he claimed in his statement, despite being asked if he experienced any problems as a result of his activities associated with the MQM.  Instead, the applicant only referred to a period of a year, in 1985 or 1986, when he claimed the whole colony was under curfew, and also the killing of his brother-in-law’s brother.

21. The Tribunal finds the applicant’s association with the MQM was restricted not only in time but also as to its political nature and as such, it does not accept that over thirty years after being associated with the MQM he would face a real chance of serious harm either because of his past membership of the MQM or because of his membership of the social groups posited by the applicant’s previous adviser:  “people perceived holding views against the State and other various religious parties”, “people belonging to a certain party with certain views endangering their lives even within their party” and “vulnerable people being the victim of powerful elements in the society”. The Tribunal has had regard to the applicant’s evidence in the hearing that he did not want to get involved in any of the activities in the past and in light of the fact the applicant had no association with the MQM once he moved to Islamabad in 1985 and has only socialised with members of the party while in Australia, the Tribunal does not accept the applicant will recommence his association with the party or any activities in support of the MQM if he returned to Pakistan, including tutoring children or writing letters for others.  

22. More significantly, the Tribunal notes the applicant’s fears as a result of his association with the MQM over thirty years ago, appear to be in relation to his return to Karachi, which is where the MQM was formed and where they have a significant presence. However, as the applicant moved to Islamabad in 1985 and was residing there until he departed the country in 1996, the Tribunal finds the applicant’s home region is Islamabad and that is where he would be returning to. The Tribunal therefore finds given the applicant’s limited association with the MQM over thirty years ago while he was living in Karachi and his evidence in the hearing that he would not resume his membership or activities in support of the party, the applicant does not face a real chance of serious harm either from the government or members of the MQM or anyone else if he returned to his home region, Islamabad, now or in the reasonably foreseeable future.

23. The Tribunal has taken into consideration the evidence before it regarding the death of the applicant’s brother-in-law’s brother. According to the applicant’s evidence in the hearing, his brother-in-law’s brother was killed by members of his own party, the MQM, during a “shoot out” with the PPI because he was becoming too popular and was making his own decisions. When asked if his brother-in-law’s brother held a position in the MQM, he stated that he was a “top dog” and was making decisions against the orders of the top commanders.   The Tribunal finds the applicant’s brother-in-law’s profile significantly different from that of the applicant’s given that he held a position within the MQM and was acting against the leaders of the party. As such, the Tribunal does not accept that applicant’s brother-in-law’s brother’s situation is comparable to that of the applicant’s. Further, the applicant’s evidence was that his brother-in-law’s brother was killed in 1986 or 1987, which on the evidence before the Tribunal, was after the applicant had moved to Islamabad. It also notes that there is nothing in the applicant’s evidence to suggest that he had any problems in Pakistan as a result of his friendship with his brother-in-law’s brother, either before his death or in the years after, prior to his departure from the country in 1996. Given the passage of time since the applicant’s brother-in-law’s brother’s death ten years ago and the fact that the applicant would be returning to Islamabad, his home region, where he experienced no problems in the past because of his connection with his brother-in-law’s brother or for any other reason, the Tribunal does not accept that the applicant will face a real chance of serious harm, now or in the reasonably foreseeable future, for this reason.

1. Similarly, the Tribunal does not accept that the applicant’s familial association with his brother-in-law, who was stated to be a high profile businessman in Karachi, would result in the applicant facing any harm on his return to his home region in Islamabad. The applicant’s evidence in the hearing was that his brother-in-law was well-known because he opened a [business] quite a long time back. The Tribunal notes the applicant’s evidence in the hearing that his brother-in-law does not have a direct association with the MQM; he is not a member. He stated that his brother-in-law supported charities but had not direct political affiliation. Based on the applicant’s evidence in the hearing, the Tribunal does not accept that the applicant’s brother-in-law is a high profile MQM supporter. The applicant confirmed that his brother-in-law continues to reside in Karachi. The Tribunal notes the applicant made no claims that his connection to his brother-in-law, a prominent commercial businessman and supporter of the MQM, caused him any difficulties in the past during the more than ten years that he was residing in Islamabad prior to his departure from the country. In fact, as the Tribunal noted in the hearing, the applicant did not raise anything in his statement of claims suggesting that he had a fear of harm as a result of his familial connection to his brother-in-law. As such, the Tribunal does not accept on the evidence before it that the applicant’s connection to his brother-in-law would exacerbate the applicant’s profile, which would act as a catalyst to government persecution and which may result in imprisonment, as the applicant’s current adviser contended in his submission to the Department dated 7 May 2015.  

2. In addition to the applicant’s claimed fear of returning to Pakistan because of his past membership of the MQM, it was also claimed that the applicant’s involvement in a commercial dispute with his previous business partner since arriving in Australia places him at risk of harm if he returns to Pakistan. According to the applicant’s evidence in the hearing he formed a partnership with equal shares with his friend in 1993-1994 which was called [Company 2]. He stated that when he decided to come to Australia, he and his business partner made an oral agreement that his business partner would run the business until their major contract matured in January 2000 and at that time they would break their partnership and divide the assets. However, when it was coming close to January 2000 and he contacted his partner to let him know he was not coming back and wanted his share of the money, his partner kept putting him off and finally during a heated conversation, his partner told him “why don’t you come and get it”.    

3. The Tribunal does not accept that the applicant was co-founder or co-owner of any company in Pakistan. The Tribunal finds the documents submitted by the applicant to the Department do not evidence that he was an owner of this business. The applicant provided a copy of a letter from [a bank] dated 14 September 1995 which states he was Chief Executive Officer. Also submitted were statements of account for [another bank] addressed to [Company 2]. The Tribunal finds as CEO, the applicant would be able to access financial documents of the company. Similarly, the copy of what appears to be a pro-forma letter of introduction, copy of invoices addressed to [Company 2] and a copy of an agreement also addressed to the company are consistent with the applicant’s position as CEO and does not evidence or confirm ownership of the company. While the applicant provided a copy of a Memorandum and Articles of Association, including a list of shareholders which comprised the applicant and another person, as the Tribunal noted in the hearing this document is not signed, witnessed, dated or stamped. The applicant stated that this document was given to him as a draft by his partner and his understanding was that it would be done. When the Tribunal asked the applicant if he signed this document, the applicant stated he could not remember. The Tribunal place no weight on the draft Memorandum and Articles of Association submitted by the applicant as evidence that he was owner of this company given that his evidence does not suggest that it was actually executed.

4. In addition to documents submitted by the applicant not evidencing his ownership or alleged partnership of [Company 2], the Tribunal has taken into consideration information included as part of the applicant’s application for a temporary] visa. In the application form, the applicant claimed that he had 100% ownership of [Company 2] and that his period of involvement in the company was from November 1993 to June 1996. He also claimed, in response to the question [regarding his assets] that he had business equipment valued at 5,12,750.00 rupees, leased to [an energy] company. Further, in an attachment to the applicant’s application, titled ‘Historical Account of Asset Accumulation’, the applicant claimed that he decided to sell his interest (Goodwill) in the company. As the Tribunal put to the applicant, the information included in his business application contradicts the information provided in his current application and leads the Tribunal to find that the applicant was not in a partnership with anyone. The Tribunal notes the applicant’s evidence that he could not remember what he wrote in the business application. Further, the applicant conceded that there may be some discrepancies in some of the papers however he did not provide an explanation for this; instead he claimed it could happen for whatever reason. When the Tribunal put the information included in his business visa application to the applicant, in accordance with the requirements of s.424AA of the Act, the applicant suggested that what was included in one form, as compared to another form,  may be different depending on the scenario and the different goals or conditions attached to it. He claimed it happened a long time back and when he left in 1996, he left the business, and the form he filled out was the way it was.

5. Given the evidence submitted by the applicant does not confirm the applicant’s ownership of this company as an equal partner and the conflicting evidence he provided in his earlier application for a business visa regarding his ownership of the company, as discussed above, the Tribunal does not accept that the applicant was in partnership with his friend in Pakistan. It therefore follows that the Tribunal does not accept that the applicant was threatened with death if he returned to Pakistan by this alleged partner when he purportedly contacted him at the end of 1999 in regard to ending their alleged partnership. The Tribunal does not accept that the applicant has any association with a prominent business person with whom he is in a dispute, as submitted by the applicant’s adviser. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm if he returns to Pakistan, particularly Islamabad, now or in the reasonably foreseeable future, from his alleged business partner.

6. The Tribunal has also taken into consideration the fact that on the applicant’s evidence in the hearing, the applicant was living in Australia for fifteen years unlawfully, without seeking protection. While the applicant claimed that he was married in 2005 and could have applied for a partner reason, as he himself stated, he did not make an application. The Tribunal finds it implausible that if the applicant left Pakistan mainly to avoid problems such as being tortured or killed as he claimed in his statement attached to his protection visa application, that he would delay seeking protection for such a significant number of years. The applicant’s explanation was that it was pride that prevented him from applying for asylum. The Tribunal notes that it is well established that delay in applying for refugee status is a relevant consideration. In Anandaray 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. In circumstances where the applicant’s situation in Australia changed significantly in 2000, at which time he became unlawful, and he also claimed to have received threats from his alleged business partner, the Tribunal finds the applicant’s delay in seeking protection raises serious concerns about the genuineness of his fear.

7. The Tribunal has had regard to the applicant’s claim that he may face harm due to the perception that he is rich. In the hearing, he claimed that he may be subject to extortion because he is perceived as being wealthy. The Tribunal notes the independent information it put to the applicant, particularly from the DFAT report on Pakistan dated 14 April 2015 in which it was stated that many Pakistanis have relatives living in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives and are not at any increased risk because they have spent time in western countries. DFAT assesses that there is no evidence that indicates individuals would be subject to discrimination or violence as a result of them having spent time in western countries. The Tribunal notes the applicant’s claim in the hearing that he has more of a chance of being subjected to harm because of his race profile. When asked to explain what he meant by race profile, the applicant stated because of his previous association with the MQM and his brother-in-law. As the Tribunal noted, his association with the MQM and his brother-in-law would not be known in Islamabad. While the applicant responded stating that his biggest problem in Islamabad is with his business partner, as discussed above, the Tribunal does not accept that the applicant had a business partner in Pakistan.  The Tribunal notes the applicant’s claim that his situation is different from someone returning to Pakistan after a few years away or visiting after a year; he would be returning after 20 years. The Tribunal appreciates that the applicant has been absent from the country for an extended period of time. However, it does not accept on the evidence before it that this would result in the applicant being perceived as wealthy or being targeted for this reason. The Tribunal finds the applicant’s claims to be speculative and does not accept that he would face a real chance of persecution for this reason, if he returns to Pakistan, now or in the reasonably foreseeable future.

8. The applicant raised the fact that he has no resources now. As the Tribunal noted in the hearing, while it accepts that he may face difficulty re-establishing himself in Islamabad after many years away from the country, there was nothing to suggest that he would be denied employment or somewhere to live, for any reason including a Convention reason. The Tribunal observed in the hearing that the applicant appeared to be a resourceful person, with a long varied history of employment both in Pakistan and Australia, which he could rely on in finding  work on his return to Islamabad. It also notes that the applicant spent fifteen years in Islamabad prior to coming to Australia and while he may not have been in contact with friends and associates living there during his time in Australia, the Tribunal is satisfied that he would still have support mechanisms available to him in Islamabad developed over the substantial time he was living there. The Tribunal notes in particular, the applicant’s evidence in the hearing regarding the assistance he received in obtaining documents from Islamabad. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm if he returns to Pakistan because of the limited resources he currently has.

9. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied he has a well-founded fear of persecution for a Convention reason including his past political opinion, his limited work in Karachi as a tutor for underprivileged children for a period of less than a year, 30 years ago, his drafting of letters of complaint and to the editors for members of the MQM also some 30 years ago, an imputed socio-economic profile as a result of previous commercial conflict or the recognition of previous economic success and/or perceived economic success as a result of his protracted stay in Australia, if he returns to Pakistan, now or in the reasonably foreseeable future.  It is therefore not satisfied he 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

10. On the basis of the applicant’s claim to be a national of Pakistan and his Pakistan passport, the Tribunal finds that Pakistan is the applicant’s receiving country for the purposes of s.36(2)(aa).

1. As the Tribunal does not accept that the applicant is a refugee as defined in the Act, 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.

2. Having regard to the definition of significant harm in s.36(2A) of the Act as set out in the attachment of this decision, and the findings 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.

3. The Tribunal has considered whether the applicant would suffer significant harm based on his membership of the MQM and the limited activities he engaged in whilst he was in Karachi,  which were not political in nature. As discussed above, the Tribunal has some doubts that the applicant was in fact a member of the MQM due to inconsistencies in his evidence regarding his residence in Pakistan, however even if it accepts that he was a member of the party and that he tutored underprivileged children for a period of up to a year in Karachi and wrote letters to the editor and complaints on behalf of other members of the MQM, the Tribunal does not accept that if the applicant returns to the Islamabad, which is where he was living for at least ten years prior to his departure from the country, 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 a former member of the MQM. The Tribunal refers to the fact that the applicant’s association with the MQM was some thirty years ago, that he participated in tutoring children for a period of less than a year and wrote letters which did not identify him as the author and he did not engage in any political activities or continued with his membership of the party once he moved to Islamabad. While the Tribunal accepts that the applicant has socialised with MQM members in Australia and that he continues to agree with the aspirations of the party, the Tribunal finds on the applicant’s evidence in the hearing that he would not resume his membership or activities in support of the party. In these circumstances, the Tribunal does not accept that the applicant faces any threat at all of being detained on his return to Pakistan and therefore does not accept  the applicant’s adviser’s submissions addressing the decision in WZAPN v MIBP [2014] FCA 947 (which the Tribunal notes was overturned by the High Court MIBP v WZAPN; WZARv V MIBP [2015] HCA 22) are applicable to the applicant’s case.

4. In relation to the applicant’s familial association with his brother-in-law, who is a high profile or prominent businessman in Karachi, the Tribunal does not accept that 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 he would suffer harm as defined in subsection 36(2A) of the Act, in his home area of Islamabad. The Tribunal refers to the applicant’s evidence that he did not experience any problems during the many years he was living and working in Islamabad because of his connection by marriage to his brother-in-law. The Tribunal does not accept on the evidence before it that there is any reason why if the applicant returned to Islamabad, he would face a real risk of significant harm because of his brother-in-law who is residing in another part of the country.  

5. Similarly, the Tribunal does not accept the applicant’s friendship with the brother of his brother-in-law, who died in 1986 or 1987 in Karachi at the hands of his own party members, would result in the applicant facing a real risk of significant harm on his return to Pakistan given the applicant had not previously experienced any problems in the past for his connection to him while he was living in Islamabad and the passage of time since his brother-in-law’s brother’s association with the MQM.

6. In regard to the applicant’s claims in relation to the alleged threats he received from his former business partner and his fear of harm as a result of his alleged dispute with a prominent business person, as discussed above, the Tribunal does not accept that the applicant was in a partnership with anyone. As such  the Tribunal does not accept 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 that he will suffer significant harm from this alleged business partner or anyone associated with him. It therefore follows that the Tribunal finds the submissions made by the applicant’s adviser regarding the analogy between the applicant’s case and the circumstances of another Tribunal decision (1318565) which concerned claims involving money lenders is not applicable or relevant.  

7. The Tribunal also finds on the basis of the country information cited above and the applicant’s individual circumstances, 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 as a returnee from a Western country or as a result of being perceived to be rich.

8. 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).

9. 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).

10. 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).

1. 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).

2. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant referred to the fact that he had been in Australia for nearly thirty years now and considers Australia to be his home. He stated that his only remaining sibling, his brother, resides in Australia and his mother, who is the only member of his family in Pakistan currently, will be coming to Australia soon as her application, sponsored by his brother, has been approved. He also referred to the fact that he is still married to his Australian citizen wife and hopes to reconcile with her. The applicant referred to his work history in Australia and the fact that he has not been a drain to the economy.

3. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Sydelle Muling
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

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

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

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

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

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

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …