1510775 (Refugee)

[2016] AATA 4638

1510775 (Refugee) [2016] AATA 4638 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510775

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:25 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2016 at 10:19am

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. The applicant is a citizen of Pakistan, aged in his early [age]. He is from Karachi in Sindh province. His religion is Sunni Muslim. The applicant first arrived in Australia in 2003 on a Sponsored visitor visa. He departed Australia after staying for three months. He was granted a further Visitor visa [in] July 2013 and he arrived in Australia on that visa [in] January 2014. The applicant twice requested a waiver of condition 8503 (no further stay). Both waiver requests were refused in March 2014.

2. The applicant applied to the Department of Immigration for the Protection visa [in] April 2014. The applicant essentially claimed that he is sought by the Taliban and “local political parties” who will harm him if he returns to Pakistan. The applicant claims that he has been particularly targeted because he is a businessman and he has relatives living overseas.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] July 2015. The delegate did not accept any of the applicant’s claims. The delegate found that the applicant’s evidence during the interview was confused and inconsistent and the delay in his departure from Pakistan following the grant of the visa, and his attempts to delay his stay in Australia by lodging applications to waive the ‘no further stay’ condition, are indicative of the fact that he had fabricated his claims in an attempt to remain in Australia. 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).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant stated that he speaks, reads and writes Urdu. The applicant also stated that he was married in 2002. He indicated that his wife and children remain in Pakistan. The applicant indicated on the application form that his [parent] and [siblings] reside in Australia. He also indicated that he has a [sibling] residing in [Country 1] and a [sibling] residing in [Country 2]. The applicant stated that from 2001 he was the [occupation] for [a workplace] in [Karachi].

6. In response to a question on the application form as to why he left Pakistan, the applicant stated that the Taliban and local parties were threating to kidnap and kill him, and if he had not left the country he would be dead. The applicant stated, in response to a question as to whether he has experienced harm in Pakistan, that because of the Taliban and local political parties his life has been “hell” and he cannot move around anywhere. He states that he tried to hide himself and his family and the situation made him very depressed. He states that he does not sleep at night and is now an “anxiety patient”. The applicant states that he fears that the Taliban and political parties which have strong criminal elements will harm him as soon as he arrives. The applicant states that the Taliban and political parties are searching for him and will kidnap or kill him. He states that if he does not give them any money they will cut his legs and hands and treat him very badly if he leaves the country without fulfilling their demands. The applicant states that he believes the Taliban and political parties will harm him because they will ask him to contact his [siblings] to send him money. The applicant states that he has not obeyed their demands and he tried to hide himself and leave the country without giving them any money. The applicant states that if he returns to Pakistan they will easily find him and kill him because they have a very strong network.

7. The applicant states that he does not think that the authorities will be able to protect him because the “whole entire world” knows about the condition of the Pakistani police and government authorities. The applicant states that a “very big and famous political Benazir Bhutto” was killed but the police and government did not find the killer. The applicant states that in the last few years the Taliban and political parties have killed thousands of innocent citizens of Pakistan and the police and government did not do anything. He states that he is a “very common citizen” and he cannot approach higher authorities to let them know about his problems. He tried his best to complain about his problems but he did obtain assistance. The applicant states that Pakistan has a “black law” and the political parties are very dangerous. He states that the police are involved in most of the target killings in Pakistan and he feels very unsafe in his country. The applicant believes that if he returns to Pakistan he will be killed and no-one will help him. 

8. The applicant was interviewed by the delegate [in] April 2015. The Tribunal has listened to the CD Rom recording of the interview.

   Application for review

9. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

10. The applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [brother] and their friend, [Mr A]. In his hearing response, the applicant indicated that there were problems with the interpreting during the Department interview.

11. In a submission to the Tribunal prior to the hearing, the applicant provided a statutory declaration, [in] October 2016. The applicant states that he has listened to the recording with the Department and has read the decision record many times. He states that the delegate arrived at the decision through an “unreasonable and inflexible application of the relevant law omitting procedural fairness, and giving preponderance to irrelevant matters without regard to the circumstantial merits of the case”. The applicant also states that some questions were misinterpreted by the interpreter such as his ethnicity and the amount of money extorted from him. The submission by the applicant included a statutory declaration by his [brother] and references to various articles and reports on the predominance of the Taliban and the Muttahida Quami Movement (MQM) in Karachi. The submission and the applicant’s and his witnesses’ evidence is considered in further detail below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. The Tribunal has considered whether the applicant has a well founded fear of persecution for reasons of his or actual or imputed political opinion, his ethnicity as a Muhajir, his membership of a particular social group, or for any other Convention reason. In considering these issues, the Tribunal has had regard to the applicant’s oral and written evidence to the Department and the Tribunal, as well as the evidence of the witnesses during the Tribunal hearing. The Tribunal has also had regard to the most recent country report by the Department of Foreign Affairs and Trade on the political and security situation in Pakistan, dated 15 January 2016.[1] Having considered all of that evidence, the Tribunal does not accept that the applicant has given a truthful account of his reasons for leaving Pakistan or his reasons for seeking Australia’s protection. The Tribunal considers that the applicant has manufactured his claims in an attempt to provide a basis upon which he can remain in Australia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    Claims to have been extorted by the Taliban

    [1] Department of Foreign Affairs and Trade 2016, ‘DFAT Country Information Report: Pakistan’, 15 January.

13. As indicated above, the applicant has claimed that he has been sought by the Taliban and the MQM, a political party which is predominant largely in Karachi and Sindh province.[2] The applicant stated that the demands for money from the Taliban first occurred in October 2013 when they knocked on his door, told him they belong to the Taliban and they know everything about him and have made inquiries about him. They told him they know all his family is outside of Pakistan and he was told to get the money and they would return to collect it in a week or two weeks, and they are watching over him. From October 2013 he was moving around and living with relatives and sometimes friends. The applicant claimed during the interview with the delegate that he was asked for money between “10 to 15 times” and they would watch him and fire in the air to scare him. He claimed that he was attacked once and fired on when he was getting milk for his children in the first week of December 2013, but he cannot remember any more details because of his depression.

    [2] DFAT, Ibid, has reported that the MQM is a Karachi based secular party which advocates for the rights of Muhajirs or the Urdu speaking Muslim migrants and their descendants from India, at p. 12.

14. When asked by the delegate about the last incident that occurred prior to his departure from Pakistan, the applicant stated that it was in January 2014 when they came and threatened him. Prior to that time they had been threatening him for about two to three months and had asked for about “[amount] lac dollar”. After they came to his home in October 2013 they returned every two or three weeks but he was able to stall them and they would then leave. When asked whether he reported anything to the police, the applicant stated that he is just a “normal citizen” and the police would not do anything to help him, although he went with his lawyer to a police station to complain about it. At that time a police inspector had been killed and he realised if they cannot look after each other then they cannot look after him. The police told him they could not help him and he did not file a police report because they wanted him to give them 5 lacs to file the report.

15. In a submission to the Tribunal prior to the hearing, the applicant stated that there was a misunderstanding during the Department interview in relation to the amount of money extorted from him. He stated that he had answered that it was “[amount] lac dollars: $[amount]” but the interpreter misinterpreted this to [amount] lac, or [amount] rupees, or about $[amount]. He states that as a result of his ordeal of being extorted for $[amount] he has suffered significant physical and mental problems and his wife and children remain hiding in Pakistan. He quotes an Amnesty International report on violence against women and girls. The applicant states that he was targeted not because his family departed for overseas but because they live overseas. He states that he did not claim to fear generalised violence in Karachi and although the delegate referred to his lack of detail and contradictory nature of his account of the threats he had said during the interview that the last incident that occurred was “first week, January 2014” and he had also said he was attacked whilst out buying milk. The applicant also states that the manner of the delegate’s questions was confusing and the delegate confused the chronology of events in the decision record. The applicant also states in his pre hearing submission that other aspects of his claims were not investigated, including his ethnicity or his particular social group, and he believes he was extorted because he is a member of a particular social group of “successful businesspersons with relatives living abroad” and because the delegate did not make this inquiry his “rights to natural justice” were denied. He is in a “very depressing situation” and has hidden his family in Pakistan.

16. As indicated above, the applicant provided a statutory declaration, dated [October] 2016, from his [brother] who states that he received a telephone call from his brother sometime in October 2013 and he told him that the Taliban were threatening him and had requested that he give them $[amount] or he would be killed or kidnapped. He states that in January 2014 they were very angry with the applicant and he then ran away from Pakistan. He states that the applicant did not come to Australia to work and he has not earned any money. The applicant’s brother also gave evidence during the hearing and told the Tribunal that he came to Australia about [number] years ago and the applicant has had problems in Pakistan from the Taliban who has demanded he pay $[amount]. He stated that there are too many problems in Pakistan from the Taliban which is now very strong and the presence of the Rangers and operations will not prevent them from harming his brother. He also stated that the Taliban moved from Peshawar to Karachi about three years ago and his brother has his wife and [children] in Pakistan and had a good job, and his brother did not come to Australia due to an “economic agenda” and has not worked whilst he has been in Australia. He stated that the applicant is [deleted] and suffers from depression and he cannot live without his wife and children and, unlike Australia, in Pakistan everyone knows their neighbours and the applicant would be found very quickly if he returned. The applicant’s friend, [Mr A], gave evidence during the hearing that he has known the applicant and his brother since early 2015; they attend the same “spiritual community” and he has been shocked by their experiences. He stated that he felt there were some significant matters which were misunderstood by the Department, particularly in relation to generalised violence which the applicant did not refer to and the amount of money extorted from him.

17. The applicant has referred, in a pre-hearing submission, to reports that the Taliban extorts money from people who have links with family members living abroad “often in stable, financially prosperous European and Western democracies” and they trace people according to perceptible signs of success, such as fine clothing, good car, nice house and professional employment. The applicant provided articles from the Combatting Terrorism Centre and the ‘Pakistan 2016 Crime and Safety Report: Karachi’ and other reports which refer to extortion rackets and kidnappings in Karachi and to reports on the constraints faced by the police to maintain law and order. The applicant states that the Taliban and MQM are well organised, wealthy criminal syndicates and he is of great interest to them because of his professional success and his family’s prosperous circumstances. He states he is of no interest to the police and that is the context in which his claim to the delegate to be a “common citizen” is relevant. The applicant states that he had mentioned the case of Benazir Bhutto in this context and he was seeking to explain the difficulty of obtaining police assistance and protection, even for some notable people. The applicant states that it is his wealthy profession and family prosperity which makes him a significant target for the Taliban and the MQM and being a “very common citizen” means that the Pakistani authorities do not consider his protection an important obligation. The applicant further states that the delegate confused “an already confused matter” by asking why a common person like him would be killed. The applicant states that this was not the issue and he cannot obtain police assistance and protection unless he pays a significant bribe. The applicant concludes by stating that he has been subject to “genuine persecution” because the Taliban and the MQM have threatened him with “significant harm” and the police refused to assist him unless he paid a significant bribe.

18. During the Tribunal hearing, the applicant confirmed that he has [siblings] in Australia, and [siblings] in [Country 2] and [Country 1]. His only family in Pakistan is his wife and [children], who are now aged [ages] years. The applicant was an employee for [a workplace] from 2001 and he stopped working for the company in October 2013. The applicant confirmed that he came to Australia in January 2014. When asked why he came to Australia in January 2014, the applicant stated that it was due to the threats and he made an application for a Visitor visa in June 2013 because his [parent] was unwell and he decided to obtain the visa so that he could leave Pakistan for Australia if [his/her] health deteriorated. The applicant confirmed his claims to have been sought by the Taliban from the first week of October 2013 when they told him that they knew his name and they have information that he has family members in [Country 1], [Country 2] and Australia. He stated that one of his [siblings] has lived in Australia for about [number] years and another for about [number] years, and [another sibling] had been in [Country 2] for [number] years and he also has a [sibling] living in [Country 1]. The applicant clarified that the Taliban had asked for “[amount] lac dollar” which is the term they used and it is equivalent to $[amount]. He was shocked at the excessive amount and told them that they should come back in two weeks’ time. They returned about two weeks later at 9pm and again asked for money. They continued to come to see him throughout October and November and in total they came about 10 to 15 times. He kept telling them that it is a huge amount. He was very frightened because he knew they were watching him. He continued to work until about 16 or 17 October but ceased working soon after that time because he was very frightened. When asked when he moved his family from their home in Karachi to [another location], the applicant stated that it was a day before he left Pakistan in January 2014. When asked why he would not have moved his family at an earlier time, the applicant stated that he took his family to different places before that time, and in Australia it is easy to move around but not as easy to move in Pakistan and he had to take his family to friends’ houses. When the Tribunal commented that it is difficult to see why he would not have moved his family immediately, the applicant stated that he was depressed and anxious and he had no-one with whom to discuss the issue.

19. In relation to the delay in his departure from Pakistan, the applicant told the delegate that he had obtained the Visitor visa in July 2013 because his [parent] was unwell and he wanted to have the visa “in case” he had to leave the country suddenly. When asked why he did not leave Pakistan when the problem started, the applicant stated that the Taliban told him they would be there in two to three weeks so he waited and he felt depressed. His life was wasted and he could not think clearly. When he was also asked by the Tribunal during the hearing about the delay in leaving Pakistan, and the Tribunal commented that it appears somewhat coincidental that although his family had lived outside of Pakistan for several years, that the Taliban began asking for money when he had a visa for Australia, the applicant stated that he came to Australia in 2003 legally and again got a visa in 2007 but he did not use that visa. The applicant stated that he could have travelled to Australia during the previous time when he was granted a visa or stayed in Australia in 2003, but he has only stayed this time because of the problems he had in Pakistan.

1. In his pre hearing submission to the Tribunal, the applicant also stated that he had obtained a Visitor visa because his [parent] was gravely ill and he was aware he may not be able to come to Australia, but his intention was the same as in the past when he had a Visitor visa granted in [November] 2007 but he did not travel to Australia. The applicant states that he “fatefully held” a Visitor visa which he was granted in July 2013. He states that he had no idea that he would be “accosted and gravely threatened by the Taliban and MQM in October 2013” and he did not use the Visitor visa to immediately flee to Australia because he “could not think clearly” and his wife and [child] did not have visas. They could not flee together so they fled to [the other location] and they moved from place to place. The applicant states that when the Taliban returned to him in the first week of January 2014 he panicked because he could not produce the money and he hid his wife and [child] as best as he could, fearing retribution and death for non compliance.

2. When asked by the Tribunal whether he considered obtaining visas for his wife and children to leave Pakistan with him, the applicant stated that he did not apply for them in June 2013 because there was no need at that time. When asked why he did not apply for them at a later time when the problems began, the applicant stated that his whole life was interrupted and it was in January 2014 that he was told that he would be killed in two weeks’ time that he finally decided he had to leave Pakistan. He realised that the people were very dangerous and his mind was not working well. His life had completely changed and the final threat made him realise that they would kill him. The applicant also stated that he was fired on in the first week of December 2013. The applicant stated that he was out buying milk for his children and he went with a lawyer to the police to file a complaint but they wanted five to 10 lacs to file the complaint. The Tribunal again indicated that it is puzzling that he would not have moved to a different location or travelled to Australia at an earlier time if he was fired on by the Taliban. The applicant referred to his confusion and anxiety at that time. When the Tribunal queried why he did not leave Pakistan on his Visitor visa when he was shot at in early December 2013, the applicant stated that it is not easy to travel and it is very dangerous. He has had to leave his family behind and he is very depressed, anxious and a [medical] patient.

3. The Tribunal has had regard to the applicant’s evidence and that of his witnesses, including their written and oral evidence and the applicant’s comments on the delegate’s decision record. The Tribunal accepts that the applicant claimed during the interview that he was extorted for $[amount]. As discussed during the hearing, Pakistani currency is rupees[3] and the term lac is generally used to denote 100,000 rupees.[4] Although the Tribunal makes no adverse findings in relation to this issue, the Tribunal considers that the misunderstanding was because of the terminology used by the applicant and not because of interpretation errors. However, although the Tribunal has had regard to the independent evidence regarding the Taliban and its operations in Pakistan, and accepting that there was a misunderstanding in relation to the amount of the extortion demand, the Tribunal does not accept that the applicant was the victim of extortion by the Taliban or that he was ever asked for $[amount] or any amount from the Taliban.

   [3] See Currency Encyclopedia.

   [4] Lakh – Wikipedia.

4. In this regard, the Tribunal firstly considers that the applicant’s actions following the purported threats are indicative of the fact that his claims had been manufactured. Although the applicant has claimed that he was so fearful that he resigned from his employment in mid October 2013, his evidence indicates that he remained living in his home for much of the time, such that the terrorists were able to find him and shoot at him in early December 2013. Thus, although the applicant claimed to have been fired upon by the Taliban in early December 2013 and he told the delegate that he was moving from place to place, his evidence to the Tribunal was that it was not until January 2014, a day before he left Pakistan, that he moved his family to a different location. The Tribunal considers it not credible that the applicant would have considered it necessary to leave his employment in October 2013 because he was so fearful, but nevertheless remain in a place until December 2013 where he could be found whilst going to the shops to buy milk for his children. The Tribunal does not accept that the applicant would have waited until January 2014 before permanently moving his family to a different location, had he been fired upon by the Taliban in December 2013 and threatened since October 2013. In the Tribunal’s view, had the applicant been fired upon and received a number of demands for money prior to that time, he would have immediately moved his family to a different location and remained in that location.

5. The Tribunal also considers that the applicant’s response and explanation, when asked during the hearing why he had not at least attempted to obtain Visitor visas for his wife and [children] to also leave Pakistan, to be indicative of the fact that he had given no genuine consideration to this issue. In the Tribunal’s view, the applicant appeared somewhat puzzled that he would give this any consideration and instead indicated that they did not need visas when he made his application. The Tribunal accepts that the applicant has claimed that the threats did not start until after he was granted his visa, but considers that he has not satisfactorily explained why, given he has family members in Australia, that he did not consider lodging applications for his wife and [children] to also leave Pakistan and to seek the assistance of his family in Australia to do so. The applicant had previously travelled outside of Pakistan, had employment and financial security and was aware that his visa was granted in only a few weeks. In such circumstances, the Tribunal considers it not credible that he would make applications for visas for his wife and [children] to leave Pakistan. In the Tribunal’s view, the applicant had not given any consideration to this issue because he had no fear for their safety at the hands of the Taliban in October 2013 or at a later time and his wife and [children] are not and have never been in hiding from the Taliban.

6. Furthermore, the Tribunal further considers it not credible that a known terrorist group would exhibit such an extraordinary amount of patience such that they would be willing to demand the money from the applicant 10 to 15 times without taking any action against him apart from firing on in December 2013. The Tribunal does not accept that the applicant would be able to evade such a significant number of demands without at least providing some payment to the Taliban. Nor does the Tribunal accept that it would only be in January 2014 that he would decide that the threats were sufficiently serious, such that he would then decide to utilise the visa he had obtained several months earlier to leave Pakistan. In the Tribunal’s view, these issues are further indicative of the fact that the applicant has fabricated his claims to have been sought by the Taliban and threatened for several months between October 2013 and his departure from Pakistan in January 2014.     

7. In combination with the factors discussed above, the Tribunal also considers that the timing of the alleged threats raises further serious concerns that all of his claims have been fabricated. Thus, although the applicant’s family members have lived outside of Pakistan for several years and the applicant had the same employment for many years, he has claimed that he was purportedly targeted by the Taliban for the first time in October 2013 whilst holding a Visitor visa for Australia. The applicant has indicated that he does not know why he was targeted at this time and has referred to the fact that he has family members living overseas. However, his own evidence indicates that his family members have lived overseas for several years, yet he has claimed that despite this it was at a time when he conveniently had a visa to leave Pakistan that he was targeted by the Taliban for a significant amount of money for the first time. This is also despite his claims that “everyone knows him” and the Taliban is aware that he has family members in Australia, [Country 2] and [Country 1]. The Tribunal acknowledges the applicant’s evidence that he was granted Visitor visas in 2003 and 2007 (which he did not access), but considers the timing of the threats, which the applicant has claimed occurred soon after the grant of a Visitor visa for Australia, raises further serious concerns that these claims have been fabricated in an attempt to provide a basis for his application for protection in Australia.

   The applicant’s circumstances following his arrival in Australia

8. The Tribunal’s findings above are further strengthened by evidence regarding his actions following his arrival in Australia. When asked during the Department interview why he waited three months before applying for a Protection visa following his arrival in Australia, the applicant stated that he was under so much depression and he was lucky that he had a visa on his passport. He stated that when he arrived in Australia his [parent] was [age] years of age and had [surgery], and he was worried [he/she] would die. The applicant was advised that he applied for a Protection visa after his Visitor visa expired and only after he had been refused a waiver of the ‘no further stay’ condition on two occasions. The applicant was advised by the delegate that this indicates he is applying for protection so he can stay in Australia with his family rather than because he genuinely fears harm. The applicant responded that he was depressed and he had no other option and he had to stay in Australia or he would be killed. It was only when the waiver of the ‘no further stay’ condition was refused that he felt he had no other choice but to lodge an application for protection. He stated that he was unwell and he wanted to stay in Australia. He referred to the fact that he has previously had visas for the United Kingdom and Australia and stated that he could have left Pakistan then, and the fact he did so at a later time was only because he feared harm.

9. In his pre-hearing submission, the applicant referred to [a person], whom he states was granted a Protection visa after having been in Australia unlawfully and breached visa conditions. He states that he did not apply for a Protection visa until shortly before his Visitor visa experienced because he was very confused and “overcome with conflicting emotions”. He states that he was thankful he had the Visitor visa which “saved my life”. He states that feeling “I had no other option – I grasped the only lifeline I could discern: a Protection visa”. He states that he only wishes for life and for the life of his wife and [children].

10. When asked during the hearing why he did not apply for a Protection visa when he arrived in Australia on a Visitor visa, and he instead made two applications to have the Visitor visa extended, and he did not at any time indicate on those applications that he feared harm from the Taliban, the applicant stated that he was very depressed and he wanted to have his visa extended in a “legal way” and then consider what he should do. The applicant again stated that he would not have come to Australia if it were not for his problems. He has been to Australia before and had visas and he believes it is not safe for his wife and children to remain in Pakistan.

11. The Tribunal has had regard to the applicant’s explanation for the delay in the lodgement of the application. The Tribunal considers that the delay of some three months following his arrival in Australia is not particularly lengthy. However, the applicant had contact with the Department during that time on two occasions by attempting to delay his stay in Australia by lodging applications to have the ‘no further stay’ condition waived. The Tribunal considers that had the applicant been shot at and sought by the Taliban because he had failed to pay $[amount], and his wife and children were in hiding in Pakistan because he had failed to pay this amount, that he would have lodged an application for a Protection visa soon after his arrival in Australia. The applicant did not do so and rather than applying for protection soon after his arrival, he instead attempted to extend his temporary Visitor visa and lodged two applications to have condition 8503 relating to ‘no further stay’ waived. Furthermore, when lodging these two waiver applications the applicant did not make any claims to fear harm in Pakistan and instead indicated that he wanted to remain in Australia because his [parent] was unwell. The Tribunal does not accept the applicant’s explanation for failing to mention this in his applications for the condition 8503 waiver. As stated above, the Tribunal considers that had the applicant been shot at, threatened and his wife and young children were in hiding, that he would have lodged an application for protection and he would not have instead lodged applications to extend his Visitor visa whilst making no claims at that time relating to his experiences in Pakistan. The Tribunal does not accept that the applicant’s actions following his arrival in Australia support his claims to have feared harm from the Taliban and to have left Pakistan for this reason.

    Claims to have been extorted by the MQM

12. As indicated above, although the applicant claimed in his statement to the Department that it was not only the Taliban, but “political parties” who are searching for him and want to cut off his legs, his evidence during the Department interview was not that the MQM have harmed in the past, but that they had extorted money from him for about 20 years. When asked by the delegate about this claim, the applicant stated that the MQM would also come and say “get us some dollars” and this had occurred for about 20 years. When asked by the delegate why he is applying for protection now if they have been taking money for 20 years, the applicant stated that they are now asking for much “bigger” amounts. When asked by the delegate what he fears will happen to him if he returns to Pakistan, the applicant stated that the MQM’s office is two minutes away from the airport and if he leaves the airport he will be killed immediately.

13. During the Tribunal hearing, the applicant was asked about his claims to fear harm in Pakistan, but did not claim until reminded by the Tribunal, that he has also claimed to have experienced harm from the MQM. When the Tribunal queried during the hearing why he had not raised the claim relating to extortion or harm from political parties, the applicant stated that he has experienced harm from the MQM because he has lived in Karachi for [number] years. The applicant stated, when asked further details about this claim, that they would regularly demand money from him and they also came to him in October 2013 and asked for money. When the Tribunal asked whether they had come to ask for money prior to that time the applicant stated that they had come to collect money for years when they had events and he would give them a “little bit” or sometimes more, such as 2,000 rupees.

14. In his submission to the Tribunal, the applicant has stated that extortions from the MQM are well known and they are referred to as ‘political donations’. He states that having lived under the arbitrary rule of both the Taliban and the MQM for many years in Karachi, he and his family have spent much of their lives in terror and abuse. The applicant also refers to his [brother] who was shot at the age of [age] years and spent three months in hospital recovering from his injuries. The applicant states that he was not asked during the Department interview whether he supports a political party and he should have been asked whether his lack of support for a political party is the reason he was targeted by the MQM or even the Taliban. The applicant states that if he did support such a political party “I feel I would not have been targeted for extortion via death threats”. The applicant also states that in addition to this, the MQM has been extorting lesser ‘donation’ sums monthly for approximately 20 years.

15. The applicant’s [brother] has stated in his statutory declaration that he was shot by the MQM when he was [age] years of age and hospitalised, and his brother donated blood to him during that time. [The applicant’s brother] states that he did not tell the police it was the MQM who shot him because of his fear of the MQM. He also states that the MQM and the police, and Taliban are connected to each other and his brother will be in serious danger if he returns.

16. The Tribunal accepts the applicant’s claims that when his brother was [age] years of age he was shot by the MQM and hospitalised. The Tribunal also accepts that the applicant, having been born and raised in Karachi, may have from time to time have experienced extortion in the form of requests for ‘donations’. The Tribunal accepts that the applicant did not support the MQM, but considers that it is unlikely that his support or otherwise would have affected whether or not he was asked for ‘donations’. The Tribunal accepts that the MQM may request money from persons within the Karachi community or elsewhere in Sindh to support its activities. However, regardless of the reasons for their demands for money, the Tribunal does not accept that the applicant was unable to pay the money or that the amount was ever of such a level that it caused the applicant or his family to experience financial hardship. In the Tribunal’s view, his need to be prompted about this claim during the hearing is indicative of the fact that although he may from time to time have been required to give money to the MQM that the amounts required were not substantial. The Tribunal does not accept that his evidence indicates that it caused him to experience any financial difficulties or in any way threatened his capacity to earn a livelihood of any kind, or economic hardship or any other aspects of ‘serious harm’ as set out in s.91R(2). The Tribunal is not satisfied, therefore, that the applicant has experienced serious harm from the MQM whilst he was in Pakistan.   The Tribunal also does not accept that the applicant has been targeted by the MQM or any other political parties as a result of his lack of support for the MQM. The Tribunal considers that his evidence indicates only that he was occasionally extorted by the MQM for money and he paid this money without experiencing any significant difficulties. The Tribunal does not accept that the applicant had any adverse political profile at the time he left Pakistan. 

    Conclusions and consideration of the applicant’s return to Karachi

17. As indicated above, the applicant has claimed that he will be subject to serious harm from the Taliban and “political parties” upon his return to Karachi. He has claimed that that the Taliban is an organised network and as soon as he arrives in Pakistan he will be targeted by them, and he is known to them and the Taliban does not have any religion or ethics. The applicant has referred to the fact that he is from a family who has relatives overseas and because he is a businessman who will be viewed as a suitable target for extortion. In addition to newspaper reports, articles on extortion and the Taliban’s operations in Pakistan, the applicant also provided newspaper reports in relation to the death of Pakistan Sufi singer, Amjad Sabri, who was shot death in Karachi in June 2016. Further reports relating to a large number of people who were killed in Karachi in the last six years were also provided, with one report by the CTD stating that over the last six years 8,610 people have been killed.

1. During the Tribunal hearing, the Tribunal discussed the independent evidence with the applicant indicating that there has been a considerable reduction in crime in Pakistan since the presence of the Rangers. The applicant stated that it is not true that incidents have been reduced and he referred to the “very famous singer” who was killed a few minutes away from his home. The applicant stated that searches on the Internet show that many thousands of people have been killed.

2. The Tribunal has not accepted that the applicant has suffered serious harm in the past from the Taliban or the MQM. The Tribunal does not accept that the applicant was at any time targeted by the Taliban, or that he was shot at or his wife and children are in hiding. The Tribunal does not accept that the applicant sought the assistance of the police or that he was asked to pay a bribe to obtain assistance. Although the Tribunal has had regard to the independent evidence regarding extortion demands and kidnapping by the Taliban and the applicant’s claims that he is particularly vulnerable due to his family members residing overseas and his status as a successful businessman, the Tribunal does not accept that the applicant has been targeted by the Taliban in the past and has not accepted he was targeted in October 2013, despite the fact that he has had relatives residing overseas for several years and has been a businessman for several years. Nor does the Tribunal accept that the applicant was targeted for any more than small amounts from the MQM or that the extortion demands were “getting bigger” as he told the delegate. The Tribunal accepts that the applicant suffers from anxiety and depression and other health problems but does not accept that this is due to targeting from the Taliban or the MQM.  The Tribunal does not accept that [the] applicant’s brother, has given truthful evidence in relation to the extortion demands experienced by the applicant and does not accept that [Mr A] has any personal knowledge, apart from what has been told to him by the applicant and his brother, of the applicant’s circumstances in Pakistan. The Tribunal does not, therefore, accept that their evidence overcomes the problematic nature of the applicant’s own evidence.

3. Furthermore, despite the applicant’s assertions to the contrary, the independent evidence before the Tribunal indicates that there has been a significant reduction in crime and terrorism in Pakistan, including in Karachi.[5] The Tribunal is not satisfied, having found that the applicant has not been the victim of extortion from the Taliban in the past, given the reduction in crime and terrorism in Karachi, that there is a real chance he will be the victim of extortion or harm at the hands of the Taliban or any other extremist groups upon his return to Karachi. Although the Tribunal notes the applicant’s assertions that he has not claimed to have been the victim of generalised violence or that he will be the victim of generalised violence in the past, for the sake of completeness the Tribunal also finds on the evidence before it that there is not a real chance that he will suffer generalised violence upon his return to Pakistan.

   [5] Department of Foreign Affairs and Trade 2016, ‘DFAT Country Report: Pakistan’, 15 January states that “credible sources have reported a 75 per cent reduction in the number of terrorist and sectarian attacks throughout Pakistan” and that militant groups are divided and disrupted. DFAT has also reported that paramilitary Ranger operations in Karachi have “substantially reduced serious crime, pp. 6 to 7. 

4. Nor is the Tribunal satisfied that any further occasional requests for extortion from the MQM will be cause him undue economic hardship or threaten his capacity such that it amounts to serious harm. The applicant has not claimed that he will be without employment or economic support on his return to Pakistan and, as discussed above, the Tribunal is not satisfied that he has suffered serious harm through extortion by the MQM in the past. The Tribunal is also  not satisfied on the evidence before it, even though the applicant has been living in Australia for some time, that this will increase upon his return to Pakistan or that he will suffer serious harm from the MQM through ‘donations’ upon his return to Pakistan. Although the Tribunal has accepted that the applicant’s brother was shot when he was [age] years of age, his evidence indicates that his brother this incident occurred many years ago and his brother has resided in Australia for some [number] years. The Tribunal has not accepted that the applicant had any adverse political profile from the MQM at the time he left Pakistan and the Tribunal is not satisfied that there is a real chance he will be targeted by the MQM or any other political parties upon his return to Karachi.  The Tribunal has not accepted that the applicant sought the assistance of the police and whilst it has regard to his claims that he is an ordinary citizen who cannot obtain protection, the Tribunal is not satisfied that he will need to access police protection to assist him to avoid harm from the Taliban or the MQM upon his return to Pakistan. Furthermore, despite the applicant’s claims that the delegate failed to consider his claims relating to his ‘Muhajir ethnicity, the applicant’s claims in this regard are unclear and he has not indicated that he was targeted in the past because of his Muhajir ethnicity and the Tribunal is not satisfied that there is a real chance that he will be targeted on this basis on his return to Pakistan. 

5. In considering the above issues, the Tribunal has had regard to the applicant’s claims that he has had visas to come to Australia at different times and chose not to remain and to not access a previous visa, and his assertions regarding his wife and children and prospects in Pakistan. The Tribunal accepts that the applicant’s [parent] was unwell when he was motivated to lodge an application for a Visitor visa and that he has previously travelled to Australia and has been granted a visitor visa which he did not access, and his wife and children were in Pakistan and he was previously employed. However, the Tribunal does not accept that this establishes that the applicant only applied for Protection as a result of his problems he had in Pakistan. The Tribunal is drawn to the conclusion that the applicant has manufactured his claims for protection in an attempt to remain in Australia with his family members after the failure of his attempts to have condition 8503 waived. The Tribunal has not accepted the applicant’s claims and considers it unnecessary to speculate on why he may have decided on this occasion to fabricate claims for protection. The Tribunal has also had regard to the applicant’s claims of depression and anxiety as a factor which he has claimed prevented him from making rational decisions and may have affected his evidence. The Tribunal does not accept the applicant’s explanation for the problematic nature of the evidence as set out above and considers that it is not due to his anxiety or depression, but is instead due to the fact that his claims have been fabricated in an attempt to provide a basis for remaining in Australia. The Tribunal has also had regard to the applicant’s and his brother and [Mr A]’s statements regarding the interpreting and their assertions that the delegate denied the applicant natural justice. The Tribunal has accepted only that there was a misunderstanding in relation to the issue of the amount of extortion. The Tribunal considers that the other issues raised by the applicant in relation to the delegate’s decision are somewhat spurious, but in any event the Tribunal’s conclusions have been reached on its own analysis of the applicant’s evidence and claims.

6. Having considered the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his political social group of wealthy business people with relatives living overseas, persons who have family members living overseas, or any similar formation of particular social group. Nor does the Tribunal accept that he has a well founded fear of persecution for his actual or imputed political opinion as opposed to the Taliban or the MQM, or as a result of his Muhajir ethnicity or for any other Convention reason. The Tribunal finds, accordingly, that there is not a real chance that the applicant will suffer serious harm for any Convention reason if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well founded fear of harm for a Convention reason.

   Are there 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?

7. The Tribunal has also considered the applicant’s claims having regard to the Complementary Protection provisions. The Tribunal has not accepted that the applicant was targeted for extortion from the Taliban or that he was harmed or will suffer serious harm from the Taliban or the MQM if he returns to Karachi. The Tribunal has not accepted that the applicant had any adverse political profile when he left Pakistan and is not satisfied that there is a real risk that he will be harmed for this reason upon his return.

8. The Tribunal has accepted that the applicant may in the past have occasionally been required to pay small amounts of extortion money to the MQM in Karachi in the form of ‘donations’, but has not accepted that this amounts to serious harm. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions, that occasional extortion which the applicant has paid for the last 20 years, amounts to significant harm, such that it amounts to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment or that he will suffer significant harm on this basis or as a result of generalised violence. The Tribunal is also not satisfied that the applicant will suffer significant harm for reasons of his Muhajir ethnicity or for any other reason upon his return to Pakistan.

9. Therefore, the Tribunal is not satisfied that the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty torture, cruel or inhuman treatment or punishment, and degrading treatment of punishment, for any reason upon his return to Pakistan. The Tribunal is not satisfied 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.

   CONCLUSIONS

10. 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).

11. 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).

12. 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).

13. The Tribunal has had regard to the s.438 certificates on the Department files which refer to “internal working documents and business affairs”. The Tribunal is not satisfied that the disclosure of the documents covered by the certificate would be contrary to the public interest. The Tribunal finds, therefore, that the s.438 certificates are invalid.

    DECISION

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

15. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa.’

    Refugee criterion

16. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

17. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

18. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

19. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

20. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.