1511212 (Refugee)
[2017] AATA 422
•6 March 2017
1511212 (Refugee) [2017] AATA 422 (6 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1511212
COUNTRY OF REFERENCE: Pakistan
MEMBER:Christopher Smolicz
DATE:6 March 2017
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 06 March 2017 at 4:02pm
CATCHWORDS
Refugee – Protection visa – Social group – Returnee from West – Religion – Worked at Christian organisations – Western Christian wife – Threats from TPP – Credibility issuesLEGISLATION
Migration Act 1958, ss 5(1),36, 48, 65, 499
Migration Regulations 1994, Schedule 2CASES
AMA15 v MIBP [2015] FCA 1424
Bhatt v MIAC [2012] FMCA 317
DZAAS v MIAC [2012] FCA 828
SZJDS v MIAC [2013] FCCA 1383
SZJDS v MIBP [2014] FCA 51SZGIZ v MIAC (2013) 212 FCR 235
SZNHJ v MIAC (No.2) [2012] FMCA 809SZRLB v MIBP [2014] FCCA 2851
SZTQL v MIBP (No 2) [2015] FCA 548
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
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).
The applicant who claims to be a citizen of Pakistan, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] July 2015.
BACKGROUND – EFFECT OF PRIOR APPLICATION FOR PROTECTION
The applicant first arrived in Australia [in] September 2007 as the holder of a [student] visa.
[In] June 2010 he applied for a Subclass 866 Protection visa. The Department refused the application [in] December 2010. On 20 December 2010 the applicant applied to the Refugee Review Tribunal (RRT) to review the Department’s decision. The application was made prior to the implementation of the complementary protection criteria on 24 March 2012.
On 1 April 2011 the RRT affirmed the Department’s decision not to grant the applicant a Protection (Class XA) visa. The applicant applied to the Federal Magistrates Court of Australia (FMCA) for judicial review of the RRT decision. The FMCA dismissed the applicant’s appeal. The applicant subsequently applied to the Federal Court of Australia (FCA). [In] May 2012 the FCA dismissed the appeal.[1] [In] May 2012 and [in] February 2013 the applicant made two unsuccessful applications for Ministerial Intervention.
[1] [Information deleted].
As the applicant has never left Australia since first arriving and has previously been refused a protection visa, the provisions of s.48A of the Act apply. There is no evidence to suggest the Minister has made any determination under s.48B that s.48A does not apply to prevent a further application for a protection visa by the applicant.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, s.48A does not prevent a person from making a further application for a protection visa on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012.
The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
As a result, the applicant was not prevented from making a second application for a protection visa [in] September 2013.
The Tribunal must therefore consider the applicant’s claims in the context of the complementary protection provisions.
The applicant appeared before the Tribunal on 22 February 2017 to give evidence and present arguments. The applicant provided the Tribunal with a copy of the delegate’s decision refusing the protection visa application.
The Tribunal explained to the applicant that it is not bound by the findings of the earlier constituted Tribunal.[2] The Tribunal is also not obliged in law to give any weight to another Tribunal decision[3] or have regard to evidence or material in other decisions, including recent past decisions by the same decision-maker.[4] Conversely, the Tribunal is entitled to take into account the findings of another Tribunal in the exercise of its review powers.[5]
[2] See SZNHJ v MIAC (No.2) [2012] FMCA 809 (Nicholls FM, 14 September 2012) in which the Court held that each member constituted for the purpose of the review must bring their own assessment to the matters before them as to do otherwise would lay open charges of having been unduly influenced in the conduct of the review: at [62].
[3] In Bhatt v MIAC [2012] FMCA 317 (Nicholls FM, 24 April 2012) the Court held that the Tribunal is not a Court operating within the doctrines of binding authority or judicial comity and that it is not obliged, in law, to give any weight to another Tribunal decision that would have, if followed, provided the applicant with the outcome sought.
[4] See DZAAS v MIAC [2012] FCA 828 (Dowsett J, 7 August 2012).
[5] See SZJDS v MIAC [2013] FCCA 1383 (Judge Raphael, 10 September 2013) at [18]-[21]. Undisturbed on appeal: SZJDS v MIBP [2014] FCA 51 (Jagot J, 12 February 2014); SZRLB v MIBP [2014] FCCA 2851(Judge Nicholls, 5 December 2014) and SZTQL v MIBP (No 2) [2015] FCA 548 (Allsop CJ, 4 June 2015) at [20] - [21].
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal explained to the applicant that in making its decision it has had regard to the DFAT Country Information Report Pakistan dated 15 January 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is 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 in Pakistan because:
· He has studied and lived in a Western country and is perceived by the Tehrik-e-Taliban (TTP) to be “non-Muslim”
· He has worked for a Christian community organisation in Australia
· His wife is a Christian of [Country 1] decent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s factual claims and the Tribunal’s findings
First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim. The Tribunal has also had regard to the applicant’s most current statutory declaration dated 16 February 2017 setting out his claims for protection.
The applicant is [age]. He was born in Haripur, Khyber Pakhtunkhwa, Pakistan. He described his religion as Sunni Muslim. He speaks, reads and writes in English and Urdu, the national language of Pakistan.
In 2000 the applicant obtained a [tertiary qualification] in Pakistan. Prior to arriving in Australia he worked as a [occupation] for a private company in Pakistan.
His mother was a teacher at a [school]. She resigned in 2006 after threats were made to throw acid at female students and teachers.
The applicant married [(his first wife)] in 2004 and they divorced in June 2011 while he was in Australia. The applicant claims his ex-wife divorced him due to security issues and family clashes. They have one [child] together ([name]) born [date]. His first wife and [child] have never travelled to Australia. He has no contact with his first wife and last spoke to her in 2011.
His father passed away in 2001 and his mother passed away from a [medical condition] [in] April 2015 while the applicant was in Australia. His brother continues to live in Pakistan in the family home. His sister has married, has [children] and lives with her husband. He has [relatives] in Haripur.
The applicant said that he travelled to study in Australia in September 2007 to enhance his future career options in Pakistan. After arriving in Australia he enrolled in a [tertiary course] at [a] University at the [city] campus. He completed two semesters of study. He did not complete his studies and travelled [interstate] and enrolled in a [further course] because he thought this would enhance his employment options in Australia.
As part of his [further course] he undertook [number] hours of work placement at [Christian] Community organisations. He provided a letter from [the] Coordinating Minister of [a church]. The letter confirms that the applicant came to the community centre on a student placement in early 2009 and was offered a part-time position [working]. The applicant said he was employed for about [number] months at the Community Centre.
The applicant also provided a letter of support from [another church] dated [in] March 2010. The letter confirms that the applicant undertook volunteer work for the church and was subsequently [employed]. The applicant said he was also employed for [number] months.
The applicant has also worked as [Occupation 1] since 2008 when he first arrived in Australia. He continues to work as full time [Occupation 1] and said he is very happy living and working in [Australia].
He departed Australia [in] March 2009 to visit his family in Pakistan. In Pakistan he visited friends, attended wedding and travelled to Rawalpindi, Peshawar and Abbotabad. He returned to Australia [in] April 2009.
After he returned to Australia in April 2009 his mother began receiving anonymous threatening telephone calls at her family home. No-one would speak but she heard Pashtun spoken in the background. She thought it was a joke and ignored the calls. She subsequently received anonymous letters in the post and pamphlets would be thrown over the fence that objected to the applicant living and studying in Australia.
The letters started arriving in the last quarter of 2009 and threated the applicant’s life if he returned to Pakistan. His mother discussed the letters with his [relative]. They thought it was a joke at first. They decided not to tell anyone because they feared that the brother and mother would be attacked. They also were worried because Muslim extremists were in the police department. His mother eventually told him about the letters.
The Tribunal discussed the country information (detailed below) with the applicant at the hearing and noted the police were actively targeting the TTP and it did not seem to support his claim that the police were in affiliation with the TTP.
The applicant provided the Department with scanned copies of several letters which he claims were received by his mother in Pakistan. The Tribunal noted that the translated letters located on the Department file did not refer to him personally by name. The applicant said that not all the letters were translated.
The applicant claims the letters were targeting him because he was living in a Western culture and adopting Christianity. The letters alleged that he was against Islam and apostasy is punished by death. The letters claim he is helping and serving non-Muslims and that non-Muslims are killing Muslims in Pakistan.
The applicant claims that the Taliban have declared a fatwa on him and that he has been sentenced to death if he returns to Pakistan. He claims the Taliban will make an example to others not to mix with Christians or convert to Christianity.
It was submitted that even though the applicant prays daily and regularly attends the mosque for Friday prayer in Australia he is being targeted because he is seen by the TTP as breaking sharia law by studying and working for Christians (infidels) in Australia. On his return to Pakistan he will be killed in front of his family.
The Tribunal questioned the applicant why the Taliban would single him out in the threatening letters in 2009. The applicant said that he has no enemies in Pakistan. He has no criminal convictions and does not owe anyone any money. The applicant said that when he returned to Pakistan in 2009 he would meet friends and go out to restaurants and talk about his life in Australia, what he did for a living, his lifestyle and his community work in the church. He suspects that his conversation with his friends was overheard. He suspects this is the cause of his problems. He has no other explanation of why the letters were sent to his home in Pakistan.
The Tribunal asked the applicant if he could be more specific about who he thinks may have overheard his conversation, when and where this occurred.
The applicant maintained that he could have been overheard anywhere and could not provide more specific information. The Tribunal noted that it seemed quite random that he would happen to be out with friends at a restaurant discussing his life and work in Australia and the TTP were able to overhear his conversation. The Tribunal finds it surprising that the TTP would be able to recognise the applicant and target him in circumstances where he has no profile in Pakistan as anti-Taliban and pro-Western.
In response the applicant said that it was a situation of “real bad luck” and he has never had any problems in the past in Pakistan before. He does not know where or when it happened or who it was that overheard the conversation.
The Tribunal asked the applicant how many letters and pamphlets were sent to his mother’s house. The applicant said 50 to 100. The Tribunal asked the applicant if the threats were still ongoing. The applicant said that they have slowed down and the letters now come probably once a month. He claimed that his local friends who studied overseas have not been threatened and only he has.
The applicant provided three copies of police First Information Reports (FIR). According to the FIR in November 2012 and March 2013 an anonymous group of people fired shots at his family home and the applicant’s brother was injured and had to attend hospital. Pamphlets threatening the applicant were also thrown at his house.
The Tribunal questioned the applicant about the FIR at the hearing. The applicant said anonymous people fired gun shots at his mother’s home. His mother and brother reported the incident to the police. The Tribunal asked the applicant if anyone was injured. The applicant said at the hearing that no-one was injured. The Tribunal notes the applicant’s evidence is not consistent with the FIR. The applicant said no-one was injured because the attackers could not get into the house.
The Tribunal explained to the applicant that it has had regard to country information prepared by DFAT which states that FIR are easily falsified in Pakistan. The applicant agreed but said that now the FIR are more sophisticated. The Tribunal noted that the FIR he has provided were issued in 2012 and 2013 and are not current.
DFAT provides the following information about document fraud in Pakistan:
5.45 Document fraud is endemic in Pakistan, particularly in those forms of documentation which are not issued by a competent central authority such as NADRA. For example, police-issued FIRs are not difficult to fraudulently produce. They are standard forms which can be completed by hand (the use of a computer is not necessary). The existence of an FIR does not, in and of itself, confirm that the events in the FIR took place.
5.46 More broadly, DFAT is aware of numerous cases of false school and academic records, birth certificates, death certificates, medical records, bank records and documents issued in a legitimate format without proper verification by Pakistani authorities. Pakistan journalists have advised DFAT that it is possible to have false stories published in newspapers for a fee, however this may occur less frequently over time.
The Tribunal has had regard to the country information and inconsistencies between the FIR and his evidence at the hearing and finds, the copy FIR reports provided by the applicant are of limited assistance.
The applicant claims that when is brother was travelling from Haripur to Abottabad people would ask his brother about him (the applicant) and when he would return to Pakistan. He claims that in response to the threats his brother stopped traveling to Abottabad to attend university, and instead he remained closer to home to study in Hairpur. The applicant did not expand on these claims at the hearing. It is unclear who the people are that questioned his brother, what they said or how they knew the applicant was abroad.
The applicant claimed that his brother had [changed appearance] to avoid adverse attention. The Tribunal notes that the applicant’s brother has continued to live in the family home and noted that his brother had not provided any evidence in support of his application for protection. The applicant made no claims that his brother had been targeted by the TTP in Haripur.
The Tribunal agreed to provide the applicant with further time after the hearing to obtain evidence from his brother.
After the hearing the Tribunal was provided with a brief affidavit dated [in] February 2017 which purports to be sent by the applicant’s brother ([name]) from Pakistan. The brother declares that threatening letters from “extremist groups” are being delivered to his home at “random points in time”. No other information was provided about the threats. Whenever he tries to post the letters to the applicant in Australia by post, or by different courier companies for proof they are rejected due to their policies on restricted material. He can only scan them and send them by email. He did not provide any copies of the letters.
The Tribunal has had regard to the affidavit and finds it vague and limited assistance. The applicant’s brother does not identify the extremist group or provide evidence of what the letters state or when he last received them. The Tribunal finds the general nature of the brother’s evidence surprising given the applicant’s claims that anonymous extremists shot at family home in 2012 and that up to 100 letters have been sent to the family home since 2009.
He claims his family have regularly received the letters since 2009. He does not know why the threats have continued.
He never had any problems in Pakistan before 2009. His family never had any problems in Pakistan before 2009.
The Tribunal asked the applicant to explain why he fears that the TTP would still have any interest in him and would seek to cause him significant harm if he was to return to Pakistan in the reasonably foreseeable future. The applicant maintained that the threatening letters are still coming. The Tribunal notes that nothing has happened to him or his family despite the fact the letters have continued to be sent. The Tribunal asked the applicant why he thinks that the authors of the letters still want to cause him significant harm. The applicant did not answer the question.
The applicant claims his first wife had to relocate to Karachi to escape harm. The Tribunal finds the applicant’s ex-wife moved out of his mother’s home after they divorced and moved to be with her parents in Karachi. His first wife’s family were the MQM Party but were not targeted in Pakistan because of their political beliefs. At the hearing the applicant said that he has not had any contact with his ex-wife since 2011 and made no claims about being imputed as MQM Party supporter because of his ex-wife’s family connections.
[In] 15 September 2011 the applicant married a [Country 1] citizen [name]. The applicant met his second wife over the internet and she has travelled to Australia on [number] occasions to visit the applicant. They married at [a] Mosque, [in Australia]. The marriage was conducted according to the rites of Islam. [The second wife] returned to [Country 1] in April 2013 and gave birth to their [child].
The Tribunal notes that his wife and [child] are in [Country 1] and have not made any claims for protection as members of his family group. The Tribunal asked the applicant what problems his wife has experienced in [Country 1]. The applicant said that her friends spend less time with her and ignore her because she is married to a Muslim.
In written submissions the applicant claims that in 2011 after his marriage his wife has been subjected to racist abuse in [Country 1] because she married a Muslim. He provided a translated statement in which the witnesses claim they saw the applicant’s wife being verbally abused and threatened in [Country 1] between September and December 2011. The applicant claims that he would be at risk of harm in [Country 1] as anti-Muslim violence is widespread. The applicant provided copies of media articles which detail anti-Muslim violence across Europe.
The Tribunal has regard to the translated statement provided from [Country 1] claiming the applicant’s wife experienced threats and discrimination because she was married to a Muslim. For example according to the statement her friends claim when she returned to [Country 1] she was sitting at a restaurant and a random person threw two pig tails on her table and shouted abusive words such as “[words deleted]”. The Tribunal noted that they married [in] September 2011 and his wife departed Australia [in] September 2011.
The statements also allege that in December 2011 when his wife was shopping two black cars with no licence plates blocked her car and [number] men got out, with their faces covered by hoods and repeated their threats.
The Tribunal finds it surprising that his wife would be targeted so soon after arriving back in [Country 1] in circumstances where she is a Catholic and has not converted to Islam and the applicant has no religious or political profile and has never travelled to [Country 1]. The applicant claimed her home town was small and people knew she married a Muslim.
The Tribunal referred to media reports provided by the applicant and agreed that there were recent reports of anti-Muslim sentiment across Europe. The Tribunal noted however that there was no information to support his claim that Muslims face significant harm in [Country 1] and do not have access to State protection.
The Tribunal also finds it surprising that the applicant’s wife has not provided any evidence in support of his claims. The Tribunal asked the applicant if he was in a relationship with his wife. The applicant maintained that they were together and he sends her money from Australia.
The Tribunal asked the applicant if he had applied for a visa to travel to [Country 1] so that he could be with his wife and [child]. The applicant said that he did not. The Tribunal told the applicant country information confirms that he is able to apply for residence in [Country 1] because he is married to a [Country 1] citizen. [Country 1] legislation provides that a foreigner married to a [Country 1] national under [Country 1] law, and satisfying other criteria, may be granted a visa to exercise a temporary residence permit, and may enter [Country 1] on the visa.[6]
[6] [Information deleted].
The Tribunal told the applicant that it found it surprising that he has not made enquiries about travelling to [Country 1]. The applicant said he had to obtain a new Pakistan passport in [2016] and his wife has since made enquiries with [Country 1] authorities about his ability to obtain a visa and travel to [Country 1] but she has not lodged any paper work.
The applicant claims that in 2011 his share- house in [Australia] was broken into. Nothing was taken. He does not know who it was or whether it was related to his protection claims. No police report has been provided in support of the claim. He also claims that an anonymous sender from [Country 1] posted a sword (old machete) to him in Australia. There was no message accompanying the sword. He does not know what the purpose of the sword was or why it was sent. The applicant did not claim that these incidents were linked to his fear of persecution in Pakistan. The Tribunal found the applicant’s evidence regarding the break-in and the sword vague and finds that it has no relevance to his claims for protection in Australia.
The Tribunal notes that the applicant had a [tertiary qualification] and had experience working in Pakistan as a [occupation] which would enable him to secure employment. The Tribunal questioned the applicant about whether he could relocate to another part of Pakistan to avoid persecution. The applicant agreed that he is educated and could relocate and find employment in Pakistan. The applicant said that when he searches for work people would ask questions where he has been living for the past seven years and they would discover that he has been living in Australia. The applicant said that once people find out that he has been living in Australia his life would be in danger.
Country Information
The EASO provides the following information on terrorist attacks in Khyber Pakhtunkhwa:
….. Khyber-Pakhtunkhwa saw 325 terrorist attacks in 2014, compared to 499 in 2013. TTP or associated groups carried out 308 of the 325 terrorist attacks, while 17 attacks were sectarian and mostly perpetrated by TTP and Lashkar-e-Jhangvi. Peshawar was the most affected part of the province, just like in 2013. These terrorist attacks targeted civilians, security forces, educational institutions (such as the Peshawar army school), health workers, the Shia religious community, political leaders/workers, tribesmen, power installations, government officials and buildings, Sikh community, places of worship, CD shops etc. Charsadda was the second most targeted area of KP, followed by Bannu.
Beside terrorist attacks, KP also witnessed ethnic/political violence, clashes between security forces and militants, inter-tribal clashes, Pakistan-Afghan border attacks, inter-militant clashes, abductions by militants and militants-tribesmen clashes.
Methods of violence used included executions, bomb explosions, abductions where captors were killed and their bodies dumped, suicide attacks, hand-grenade attacks, armed attacks, indiscriminate firing, IED explosions and cross-border attacks. The counter violence operation carried out by security agencies in the province featured air raids and clashes with militants. Custodial deaths were reported in the province as well.
Estimates for fatalities from violent attacks show a downward trend compared with 2013, ….. The level of violence declined from March 2014, until the devastating attack on the Army Public School in Peshawar on 16 December 2014….. In the first 45 days of 2015, 55 fatalities were counted. The deadliest incident occurred on 13 February when a suicide squad attacked a Shia mosque in Peshawar, killing 22 worshippers.[7]
[7] EASO Country of Origin Information Report Pakistan Country Overview August 2015 (2.2.1)
In its most recent country information report dated 15 January 2016 DFAT confirms that Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship) and western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West (3.62).
The Tribunal notes that current advice is consistent with earlier advice provided in DFAT’s Country Information Report for Pakistan, dated 29 November 2013 where DFAT stated that it had ‘no evidence that indicates individuals would be subject to discrimination or violence as a result of them having spent time in western countries’ and noted that Pakistanis living abroad who returned to Pakistan for visits were ‘not at any increased risk because they have spent time in western countries.’[8]
[8] Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Pakistan, 29 November, Section 3.76, p.18 <CIS26783>
Country information confirms that the act of returning to Pakistan from a western country is common. Although limited to student migrants, rather than the entire migrant population, a 2012 article for the peer reviewed journal Islamic Perspective, published by the London Academy of Iranian Studies, states that “30 per cent of the 100,000 Pakistani students who study abroad annually return to Pakistan”, and that the Pakistani government has been trying to increase that number by ‘increasing their salaries, better housing opportunities and job incentives.’[9] Whilst the article does not state how many of the 30,000 students return from western countries, other reports were found which indicate that the phenomenon of students returning from western countries is common.
[9] Tavakol, M 2012, ‘Brain Drain: Problems and Solutions’, Islamic Perspective, Vol. 1, no. 7, Spring, p.165 <CIS961F9402123>
For instance, the United States Educational Foundation in Pakistan, which administers the Fulbright Scholarship in Pakistan, arranges for Pakistani students to spend part of their degree at a US University, before returning to Pakistan to complete their studies. According to a July 2012 report by The News International, 200 students leave and return to Pakistan each year. Australia – Pakistan Alumni Business Forum, which is reportedly designed to facilitate networking among individuals who studied in Australia and have returned to Pakistan.[10]
[10] Khan, A S 2012, ‘200 undergraduates to leave for US’, The News International, 20 July < <CX0D38E8E20146>. For more on the foundation, including a statement that all 100 from the latest batch had returned to Pakistan, see: The News International is part of the Jhang media group, Pakistan's largest media organisation. The News International is thought to be the second most widely read English language newspaper, after Dawn
The report notes that the students selected for exchanges were from all parts of Pakistan, including Gilgit Baltistan and Balochistan.[11] Students similarly return to Pakistan from Australia, with the Australian Trade Commission launching an Australia – Pakistan Alumni Business Forum, which is reportedly designed to facilitate networking among individuals who studied in Australia and have returned to Pakistan.[12]
[11] Khan, A S 2012, ‘200 undergraduates to leave for US’, The News International, 20 July < <CX0D38E8E20146>
[12] Australian Trade Commission 2014, Australia – Pakistan Online Alumni Business Forum launched in Pakistan, 8 April < <CIS2F827D92297>
In its most current country information report DFAT confirms that there are significant Pakistani diasporas globally, including in Saudi Arabia, India, the United Arab Emirates (UAE), the United States and the United Kingdom. World Bank data indicates that Pakistan had a net migration rate (the total number of immigrants less the annual number of emigrants) of-1,081,918 from 2011-2015. Tertiary students from Pakistan in 2013 travelled to Britain (10,122), the United States (4,949), Sweden (3,165), Australia (3,104) and the UAE (1,874).
According to a May 2010 BBC News report, many Pakistani migrants regularly move between Pakistan and the west. The report describes how ‘thousands’ of Pakistanis with UK citizenship, having lived in the UK, returned to the city of Mirpur in Pakistani-administered Kashmir, which is reportedly known as ‘little Briton’. The report claims that ‘British accents’ in the area are common and that people continue to associate themselves with western products.[13]
[13] Maqbool, A 2010, ‘Chasing the UK vote in Pakistan's 'Little Britain'’, BBC News, 1 May < Accessed 23 March 2015 <CX744258516843>
The Tribunal discussed with the applicant media reports about recent terrorist attacks in Pakistan such as the February 2017 suicide bomb blast on the Lal Shahbabaz Qalandar shrine in Sehwan which killed at least 88 people. The Tribunal noted despite the attack reports confirm that Pakistan Army, has cracked down on insurgent groups in recent years leading to a sharp drop in militant violence, vowed a swift, decisive response.[14]
[14] >
An article published by The New York Times in March 2016 reports that a series of terrorist attacks since 2014 has galvanised fragmented public opinion in Pakistan about how to deal with jihadist militancy. The article reports:
In its wake, the government lifted a six-year moratorium on executions. In a harsh crackdown, more than 300 prisoners have been hanged in the last year under a new military judicial system.
But attacks – suicide bombers, planted bombs and raids by gunmen – have continued and are gathering pace. A look at major terrorist attacks in Pakistan since the assault on the Peshawar school in 2014 suggests that government officials, health workers and religious minorities continue to be frequent targets of attacks.[15]
Findings
[15] (The applicant provide the Tribunal with a copy of this article at the hearing).
The issue for the Tribunal to determine is 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.
A person may meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
The Tribunal has considered the applicant’s claims be reference to the forms of serious harm exhaustively defined by the Act. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A).
A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. There is no suggestion the applicant would be subject to the death penalty on his return to Pakistan.
The Tribunal finds the applicant is a citizen of Pakistan from Haripur, Khyber Pakhtunkhwa. He is a member of the majority Sunni Muslim religious group in Pakistan.
The applicant first arrived in Australia in September 2007. He departed Pakistan legally on a validly issued Pakistan passport traveling to Australia on a Student visa. He is currently the holder of a valid Pakistani passport.
The Tribunal has had regard to DFAT’s most recent country information report and finds that those who return voluntarily to Pakistan with their own, valid travel documents are processed like any other Pakistani citizen returning to Pakistan.(5.23)
Before he travelled to Australia he had never experienced any significant harm in Pakistan. He returned to Pakistan for about one month to visit his family in March 2009. He experienced no serious harm in Pakistan.
The Tribunal finds the applicant holds a [tertiary qualification] and has worked as a [occupation]. He is not a health worker or government official. His work history in Pakistan is unremarkable. He is not an activist, has had no involvement in politics and has never come to the attention of the authorities in Pakistan. He has now been living in Australia for nine years.
The Tribunal found the applicant’s claim that he came to the attention of the TTP in 2009 and has since been targeted by the TTP through an ongoing campaign of threating pamphlets and letters vague, speculative and lacking in credibility.
Firstly, the Tribunal has had regard to the applicant’s profile and country information referred to above and does not accept that due to his study and community work in Australia he would be imputed with a profile of being anti-Muslim and pro-Western.
Country information confirms that thousands of people from Pakistan travel to work and study in the West. The Tribunal has had regard to country information and finds that the applicant would not be subject to discrimination or violence on the basis of having spent time in the West. The Tribunal finds that the applicant does not have an identifiable profile of interest in Pakistan that would bring him to the attention of extremist groups such as the TTP.
The applicant said that he has never had any problems in Pakistan until he returned to Pakistan for one month in 2009.
Secondly, the Tribunal found the applicant’s evidence about the circumstances in which he came to the attention of the TTP vague and lacking in credibility. The Tribunal finds the applicant or his family were not contacted, approached or threatened by the TTP when he was in Pakistan in early 2009.
Thirdly, the Tribunal finds it difficult to accept that the TTP would specifically target the applicant because of a private conversation he had with friends at a restaurant discussing his life in Australia, his study and his Christian community service work in Australia. The Tribunal finds the applicant provided vague evidence about the circumstances in which he claims he came to the attention of the TTP. For example the applicant was unable to identify who was privy to the conversation, when it occurred or where it occurred or how the TTP would be able to identify him and overhear the conversation when he was dining at a public restaurant with friends. The applicant stated that he could only speculate that conversations about his work and study in Australia were the reason he was targeted by the TTP. When the Tribunal discussed its concerns with the applicant at the hearing the applicant agreed and said it was “really bad luck” but could not provide further explanation.
Fourthly, given the applicant’s profile it is unclear why the TTP would instigate an ongoing campaign of threats directed towards him which commenced in 2009 and has continued for almost eight years in circumstances where the applicant has not been living in Pakistan.
The Tribunal notes that despite the claims the letters continued to be sent after he departed Pakistan in 2009, his mother continued to live in the family home. His mother passed away in 2015 and his brother continues still to reside in the family home and there is no evidence that the brother has been personally targeted by the TTP. The Tribunal also finds that the applicant’s ex-wife and [child] have not been harmed by the TTP.
The Tribunal found the brother’s evidence that the letters have continued to come at random points in time vague and has given this evidence little weight. The Tribunal also finds it surprising that the applicant claims the letters would continue to be sent to his family home after his mother has passed away in 2015.
As stated above the applicant has never been personally threatened in Pakistan. The applicant admits that prior to 2009 he had no profile as an activist or human rights worker or someone who is opposed to Islam. The applicant has not converted to Christianity and he continues to practice Islam. The Tribunal does not accept the TTP will make an example to others not to mix with Christians or convert to Christianity.
The Tribunal notes that his work experience in Australia at [a church] was part of a structured work placement in early 2009 which was part of his [further course]. He subsequently worked part-time for three to four months until early 2010 assisting with [certain work] issues. He no longer works for any Christian Community centre and works as a full time [Occupation 1] in Australia. The Tribunal notes that the applicant gave evidence at the hearing that he changed direction in his studies from [course] to [further course] because he thought it would improve his work prospects in Australia. He did not complete his [further course]. The Tribunal does not accept that his brief period community service work in Australia would impugn him to a profile of an apostolate or anti- Muslim. The Tribunal does not accept that the TTP have declared a fatwa on him and that he will been sentenced to death if he returns to Pakistan.
100. Having regard to the applicant’s profile the Tribunal does not accept his claim that the TTP have specifically targeted him with a continuous barrage of threatening letters/pamphlets and shot at his family home in circumstances where he has been absent from Pakistan since 2009.
101. 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 that the applicant will be arbitrarily deprived of his life by the TPP or subjected to torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ because he lived in a Western country, studied [a further course] and briefly worked in a Christian Community Centre and will be perceived to be anti-Muslim and pro-Christian.
Marriage to [Country 1 nationality]-Christian
102. The applicant’s wife and [child] are not in Australia and have not made any claims for protection. The Tribunal has also considered if there is a real risk to significant harm to the applicant in Pakistan because he is married to a [Country 1] Christian woman.
103. The USDOS provided the following information about mixed religious marriages in Pakistan:
The marriages of non-Muslim men remain legal upon conversion to Islam. If a non-Muslim woman converts to Islam and her marriage was performed according to her previous religious beliefs, the government considers the marriage dissolved. Children born to non-Muslim women who convert to Islam after marriage to a non-Muslim man are considered illegitimate, and ineligible for inheritance. The only way to legitimize the marriage, and the children, is for the husband also to convert to Islam. The children of a Muslim man and a Muslim woman who both convert to another religious group are considered illegitimate, and by law the government may take custody of the children.[16]
[16] 2015 Report on International Religious Freedom – Pakistan – United States Department of State - 10 August 2016: As detailed above, the applicant is a follower of Islam. He married his second wife at [a] Mosque in Australia. According to the marriage certificate the marriage was solemnised by [name].
105. The Tribunal does not accept that his marriage to a [Country 1] Christian woman in Australia would impute him with an anti-Muslim pro Christian profile in Pakistan in the reasonably foreseeable future. The Tribunal also notes that there is no evidence that the applicant’s wife and [child] intend to travel to Pakistan. On the contrary, the applicant provided evidence at the hearing that his wife has commenced to make enquiries with the [Country 1] authorities with the aim of securing him a [Country 1] visa.
106. The Tribunal accepts the applicant feels anxious about returning to Pakistan having now lived in Australia for over nine years. The Tribunal finds however that the applicant can speak, read and write in English and Urdu. His brother and sister and extended family continue to live in Pakistan where he has access to social support. He is educated and has a history of work in Pakistan which will place him in a strong position to be able to gain work in Pakistan in the future. This was not disputed by the applicant at the hearing.
107. 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 that the applicant will be arbitrarily deprived of his life by the TPP or subjected to ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ because he is married to a [Country 1] Christian woman with whom he has a young child.
108. The Tribunal has considered the applicant’s claims both individually and cumulatively and 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 s.36(2)(aa).
109. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
110. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christopher Smolicz
Member
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