1514166 (Refugee)

[2018] AATA 5167

1514166 (Refugee) [2018] AATA 5167 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514166

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rachel Westaway

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 09 November 2018 at 8:32pm

CATCHWORDS
REFUGEE – Protection visa – Pakistan – religion – Shia Muslim – ethnicity – Muhajir – political opinion – MQM supporter – involved with Jaffaria Alliance – particular social group – fundraiser – native Urdu-speaking Muhajir people – subject of discrimination – victim of threats and attempted murder – extortion target – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2


CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MIELGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants, who claim to be citizens of Pakistan, applied for the visas on 14 October 2013 and the delegate refused to grant the visas on 30 September 2015.

3.    The applicants appeared before the Tribunal on 9 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4.    The applicants were represented in relation to the review by their registered migration [agent].

RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7.    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

Complementary protection criterion

16. 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’).

17.      ‘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.

18.      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

19.      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.

Credibility

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

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

22.      The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

23.      The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

24.      When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.

25.      The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

26. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

27. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

COUNTRY INFORMATION

Department of Foreign Affairs and Trade, Pakistan Country Report, 15 January 2016

28.      Pakistan is an ethnically diverse nation, home to a number of distinct groups usually divided along linguistic lines. Section 28 of Pakistan’s Constitution provides that ‘any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and, subject to law, establish institutions for that purpose.’ Although Pakistan’s Constitution and legislative framework do not explicitly discriminate against particular ethnic groups, ethnicity has been a source of communal tension throughout Pakistan’s history. For example, the steady migration of Pashtuns from Khyber Pakhtunkhwa and the FATA to Karachi has directly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM), the Sindhi-based Pakistan Peoples’ Party (PPP), and the Pashtun-based Awami National Party (ANP), as well as the TTP.

29.      Politically motivated violence occurs throughout Pakistan but is most prevalent in Karachi between members of the MQM, ANP, PPP, and Sindhi nationalist parties. Many of these registered parties maintain armed wings. This pattern of violence is the result of complex demographic, economic and political changes in Karachi.

30.      The MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants and their descendants from India. As well as Karachi, the MQM has power bases in the Hyderabad and Nawabshah districts of Sindh Province. Because of the concentration of its membership in these areas, the MQM exercises considerable political influence in local political affairs, including for appointments to government positions.

31.      The MQM regularly participates as a coalition partner in the provincial and federal governments despite political differences with its coalition partners. Although the MQM did not immediately join the government at the provincial or federal levels following general elections in 2013, former senior MQM member, Dr Ishrat-ul Ebad, is the current Governor for Sindh.

32.      The MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindhi-backed PPP and Pashtun parties. The MQM also continues to oppose the ongoing migration of Pashtuns to Karachi. Since 2013, however, paramilitary Ranger operations have increasingly focused on the MQM’s criminal networks in Karachi, substantially reducing this inter-party conflict. On 11 March 2015, an MQM worker was killed during a paramilitary raid on MQM headquarters; on 4 August, Pakistani Rangers formally requested that MQM hand over 187 alleged target killers, a claim denied by MQM leadership; and on 10 August, Rangers arrested six alleged MQM target killers in Karachi. As part of this crackdown, security forces have subjected MQM members to regular identity checks throughout Karachi.

33.      Militant groups such as the TTP have periodically attacked MQM members because of differences between the MQM’s secular ideology and the Islamist creed of militant groups. For example, the TTP claimed responsibility for a grenade attack on an MQM camp in the Orangi Town area of Karachi on 21 November 2014, which injured 20 MQM members. According to the Centre for Research & Security Studies (CRSS), 26 MQM members died from January-June 2015. This is a 30 per cent reduction in the number of fatalities over the corresponding period in 2014. The MQM has also acted as a belligerent in this violence as part of its broader campaign to control infrastructure and industry in Karachi.

34.      DFAT assesses that MQM members are subject to ongoing violence in some parts of Karachi. However, the overall risk of violence has reduced since the publication of the DFAT Country Report (dated 14 April 2015), and parts of the city such as Azizabad remain relatively free from politically-motivated, terrorist and sectarian violence.

35. Pakistan’s laws and Constitution provide for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses state protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.

36.      Pakistan’s Army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas. According to International Crisis Group (ICG), 49,000 people were arrested on terrorism-related charges between the commencement of the National Action Plan (NAP) in December 2014 and May 2015. Despite the relatively high number of arrests, however, successful prosecutions of those responsible for politically-motivated or sectarian violence are rare. This is because of the ineffectiveness of police investigations, as well as the debilitating effect of threats to judges and witnesses, who are not protected by witness protection programs.

37.      ICG also notes that only a small number of those arrested under the NAP belong to extremist groups. Although the NAP proposes legal and constitutional amendments to the criminal justice system, there is no clarity about priorities, timelines or resources.

38.       

39.      Pakistan’s provinces and autonomous regions are directly responsible for law and order. Consequently, police forces are supervised at the provincial level, although the Federal Government has jurisdiction over police and paramilitary forces in Islamabad, as well as Levies and Khasadars in the FATA. There are approximately 430,000 personnel in the Pakistan Police Force.

40.      The police forces of each province act independently of each other, and there are no nationwide benchmarks in terms of training standards and coordination. The Police Act 2002 sought to reform the police by institutionalising oversight by public representatives and an independent prosecution service. However, Parliament diluted these provisions in a series of amendments to the Act in 2004.

41.      Although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.

42.      Police-generated ‘First Information Reports’ (FIRs) are generally the first step in criminal prosecutions. Police have 14 days to investigate cases after seeking a magistrate’s approval to detain suspects. In practice, however, investigations often take longer, particularly for complex cases. Although Pakistan’s provinces and territories have independent prosecution services, police are exclusively responsible for investigations and consequently have a substantial influence on the outcome of individual cases.

43.      Pashtun-majority areas have been disproportionately affected by violence in Pakistan. This is because of the historical concentration of military operations; militant attacks; and tribal, intra-communal and politically-motivated violence in these areas.

44.      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.

45.      Pakistan is ethnically and linguistically diverse. Punjabis are the largest linguistic group (45 per cent), followed by Pashtuns (15 per cent), Sindhis (14 per cent) and Seraikis (8 per cent). There are also smaller ethnic groups of Mohajir (Urdu-speaking immigrants from India, 7.5 per cent), Baloch (3.5 per cent) and Hazara (less than one per cent). Urdu and English both have status as official languages. However, only eight per cent of the population speaks Urdu as a first language. Punjabi and Seraiki (a variant of Punjabi), Sindhi, Pashto, Balochi and Brahui are major regional languages. With the exception of large urban centres, many Pakistanis tend to live within ethnically homogenous communities.

46.      Steady migration of Pashtuns from Khyber Pakhtunkhwa and the FATA to Karachi has directly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM),

Member of the same family unit

47. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a wife and dependent children.

CONSIDERATION OF CLAIMS AND EVIDENCE

48.      The issue in this case is the credibility of the applicant’s claims. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

49.      The applicant is [First named applicant]. He is the primary applicant. Attached to the visa application are dependents of the applicant, his wife, [Second named applicant], his daughter [Third named applicant] and his son [Fourth named applicant]. The dependents have not made claims of their own.

50.      In his application for review to the Tribunal, he supplied a copy of the delegate’s decision. The applicant provided the following background to his claims:

51.      His Mother is a Sunni Muslim and his father Shia. He studied in [Country 1] where he grew up. He returned to Pakistan in 1992 to finish his schooling. His parents are progressive Muslims who believe in education.

52.      In 2001 he went to [Country 2] to join his family. His father was sponsored to work there. In 2001 he also went and studied in [Country 2] at university. In 2004 he returned to study at [a Pakistan] University. In 2008 he was married. He had previously tried to enter into arranged marriages but because his parents Islamic denominations were different the other families opposed. He claims to respect both Shia and Sunni denominations.

53.      He claims he and his family have participated in ‘social work projects’. [One] brother [had] strong political connections and did regular work with MQM. He claims he did too. He claims that as he is a Mohajir he is not considered a Pakistani.

54.      He stated that the situation in Pakistan and in Karachi was increasingly unstable for Mohajir, MQM supporters and Shia Muslims. He claims Shia Muslims are influenced by Iran and the Taliban is against Iran. He explained that they face discrimination in everyday life such as employment discrimination. He stated that there were places he was not able to go to in his job because of the instability and violence

55.      He explained that it is not possible to be safe or seek protection either due to the inability of security force and police or their unwillingness.

56.      He explained that he assisted Jaffaria Alliance (JA) during a bomb blast where many people were injured. Through JA he was involved in fundraising and welfare work for people of the Shia faith. He arranged for donations for the people who were injured. He worked for a week. The government announced a relief package. He claims through this he came to the attention of the TTP. [In] March 2013 at 8.32pm he stated that he received a threating call on his mobile.  The person asked if he was a social worker for JA and to stop working for them or he will not live. He told his brother and he informed the police. He said that nothing came of the threat and he was not certain whether to take it seriously. However four months later he received another call. The caller knew his brother also worked for MQM and also knew he called the police. He was threatened with death.

57.      He claims he was extremely concerned and decided to move that day to North Karachi. He said he arranged to work in different places for a week to stay away from Karachi. He said that he and his brothers owned a property. They thought that by selling the property the funds could be used to cover the cost of relocation and to seek safety.  

58.      The applicant claims [in] July 2013 he was at a friend’s house. Upon leaving, the applicant stated that gun shots were fired in his direction when he was in his car but missed him.  The Tribunal asked the applicant why gunmen would wait until he was in his car and left his friend’s house before they shot at him. It would seem more logical to attempt to shoot the applicant as he was leaving the house. The applicant stated he is not sure why they would choose to do it then. He reported the incident to police and an FIR was lodged, a copy of which was provided to the Tribunal. He explained that he was scared and moved from one family member’s house to another with his family feeling unable to return to his home in fear of what may happen. [In] August 2013 he received another call from the same number as had previously been received. The person made a comment to the effect of “God save you” and he was threatened not to change his number and then the caller hung up. The applicant provided a copy of the phone records to the Department identifying the number he claims was the caller.

59.      The applicant received another call [in] August 2013. The caller demanded 5 million rupees in 5 days. The applicant claimed that such extortion is common place in Pakistan. He claims extortion is a big thing with the Taliban.

60.      The applicant stated that he became very worried and moved to his [relative]’s home in a secure army area until he could leave for Australia.

61.      At the hearing the Tribunal questioned the relevance of the applicant providing medical information on his wife. He explained that his wife supports the family and her health is important to him. The applicant’s representative stated that it goes to the issue of the practicality of relocation.

62.      The applicant is [age] years of age and has lived in [Country 2] and [Country 1]. He confirmed his parents are both deceased and he confirmed he has no right to live in another country other than Pakistan.

63.      The applicant explained he has siblings and one lives in [Country 2] and the remainder live in Pakistan. The one who lives in [Country 2] is a citizen and married [a Country 2 national].

64.      The applicant is the youngest sibling in his family. He is married with two children at the time of the hearing. His children are [age] and [age] and the oldest child attends a primary school.

65.      The applicant’s wife was [an occupation] and now works in a factory. The applicant worked for [a company] and stated he was in [an area].

66.      He confirmed he has been in Australian since [date] September 2013. He came to Australia for the purpose of seeking safety after the claimed attempt on his life.

67.      When asked why he chose to come to Australia he stated that to obtain a visa for [Country 2] and [another country] there is a delay of one month and he believed he did not have enough time and he already had the visa to Australia.

68.      He said that he applied on 14 March 2013 and he received a visa on 17 April 2013 for a visitor visa and he stated that he travels annually once a year, overseas for a holiday.

69.      The Tribunal asked the applicant how he intended to survive financially in Australia given when he did depart he knew he would be going for longer than a holiday.  He explained he was also waiting for the sale of his house however he confirmed that he arrived in Australia before he sold his house.

70.      The Tribunal confirmed its understanding that the claimed attack on the applicant was [in] July and then [in] August he decided to leave as soon as he could.  He departed Karachi [in] August. As such he managed to leave within 20 days from the time of the attack and his house had not yet sold. The applicant confirmed that this was correct and that time he didn’t receive his share from the house because they were in the process of selling it. The brothers had [a percentage] each and the exchange of contracts had occurred but settlement had not occurred. The Tribunal put to the applicant that it seems unusual he did not try and wait for the money from the settlement in order to take it with him. He said when he was attacked it was only then he knew what those that were targeting him were after. He posed to the Tribunal the question that how can you make a decision so easily when you have your family, investments and connections? He had the dilemma of delaying but also wanting to seek safety.

71.      He confirmed he was first targeted [in] July. He explained he believes he was targeted because he was a senior [position] for [Company 1] and involved in JA and his brother is a worker for MQM. He said that when they called him they knew he had reported the incident to police because they told him not to inform the police like he did last time. He said that it was at that moment that he knew they were connected and that it was serious because they confirmed his movements.

72.      The applicant demonstrated a strong knowledge of the political climate in Pakistan and the current issues. He spoke passionately about his concerns pertaining to the Taliban and their ideology. [In] March 2013 he explained that there were two bombs that were detonated in [the] Town. He said that [number] people died and [number] were injured. Many families didn’t have houses and he volunteered his time he was there in a voluntary capacity.  He showed that it is very easy to be profiled by the Taliban because the area is only [a number of] kilometres from his home and through [a] Foundation he raised money from the victims to support families where the male of the family has been killed. His involvement was in [a certain wing] and a fundraising team was set up by people from his circle of friends. The money and support was to cover the costs associated with the ambulance and funeral expenses. He explained that there [were various wings] of JA and it was based on geographical locations.

73.      He confirmed he had been involved in JA from 2007 until 2013.  He claims he is still a supporter and that his ideology remains and he supports his community. He explained that there are no member fees but there are for MQM. When asked if he remains involved in Australia he said that there is no JA fundraising organisation in [Australia].

74.      He was asked to explain what he would do. He explained he would arrive at 5pm and would arrange tents, sleeping bags, mattresses and blankets. They would take care of families and arrange food three times a day. He would take details from the team and he would forward to his team leader. There was no voluntary uniform. He had a counter that he would be at. It was an information/complaint counter. The Tribunal asked how he could details from the morning team if he arrived at 5pm and stayed until 9/10pm. He said they work from 8-6pm and people work in one team.

75.      He previously did regular fundraising from Ramadan for 7 months to Saffar. Many do charity work and they collect skins and sell them. He said that around 6 million animals are sacrificed in Karachi around Eid.

76.      He sold skins for fundraising from 2007. He claims that he would ask his social circle and distributors and millionaires and collect funds and give it to JA. He stated that [Company 1] did not have issues with him doing this.

77.      He stated that he volunteered with JA intermittently from 2007. They were given monthly fundraising targets for education or food. He would engage on weekly basis and they have monthly meetings.

78.      The applicant stated that he does not know of anyone personally that has been targeted at JA or [Company 1] but he has provided examples of people who were however they were not known personally.

79.      The applicant stated that his brother along with his father and himself were always supporters of MQM. He said that JA is more focussed on social work and helping members of the community but it is not easy. The applicant said that he believes his profile developed with his voluntary work with JA but it could also be because he was originally involved in MQM but his brother is the one who has remained doing this. The applicant’s brother had a paid supervisory role with MQM and has been associated with MQM since 2007.

80.      The applicant stated that his brother also relocated to a buffer zone 15-20klm away from his original home in Karachi. The Tribunal stated this is not far to relocate. The applicant said that this area is largely populated. The Tribunal again expressed its concern that no other family members have received threats. The applicant said he cannot explain this or why it was him that was fired at. He stated he was suffering mentally due to the situation. If something happens to him his siblings would not be in a position to care for his children or wife and he has sought safety for this reason.

81.      The applicant tried to explain why he believed his profile was greater. He stated he was significantly wealthier and as such this elevated his profile and made him an appealing target. He explained he was [in a senior role] and received [bonuses] and an international trip for training and he earned [amount] rupee a year.

82.      The Tribunal notes that the applicant’s statutory declaration on pg. 9 stated that he waited 9 days for the deposit so he could pay for tickets and he was in the army camp for 9 days. The Tribunal asked the applicant to provide further details about the shooting and where he went to stay after this period in order to clarify what he meant. He explained that as soon as the shots were fired, he drove straight to the police station and he could barely speak. He said from the [date to date] August he went first to his in-laws, then his sister’s home,  then a friends place and then in an army guest house which was a secure area. He claims that they took necessities from their home but left everything else.  He explained that his house sale was finalised after he left Pakistan.

83.      The applicant gave an account of his shooting incident. He explained he was [at] a friend’s house to break his fast. He was going home. He had left his friend’s house, two streets away. He was driving a [particular model] car. There was no one in the car with him. It was two years old and a company car. It was not identified as a company car.  The applicant had been driving it for two years. He never noticed anything suspicious when he went to his friend’s house or leaving. He did think someone was following him but he wasn’t sure. He used it going to work in the morning and he was still living in his house at that point in time when the attack occurred. He said two men waved him down. Their faces weren’t covered. They were young. He saw the weapon in their hand. He accelerated and they fired at him from the back. He explained that it occurred in a ‘link street’. They were on the applicant’s right side. They had their motorcycle on the side of the road. One person was near the motorcycle and the other tried to wave him down. It was two way street. It was dark and because it was after a fast many people were at home.

84.      The Tribunal stated that it is odd that they would wait two streets away and get off their motorcycle in order to wait for him and fire at him. If the Tribunal were to accept this, it would be more inclined to consider it a random shooting or carjacking. He stated that yes it is strange. They could have come inside. He said he couldn’t even speak for half an hour after the incident. He states that he has been singled out and targeted. The Tribunal put to the applicant that the general level of violence in Pakistan is great and that does he have concerns about his safety. He stated again that he has been targeted. The applicant agreed it could be random but he feels he is targeted because of the connected phone calls.

85.      The applicant stated they have killed children and many people. He made an emotional statement and said they want to ensure their presence is felt. He said he had a chance to live in [Country 2]. He is patriotic. He said he is above this. His wife has been [doing work]. They have sought help from [a charity organisation] and he has to ask for help. He never really wanted to be here.

86.      He was working [for] [a] Company and he couldn’t find a sponsor because it was a recession. He then said he could have married a girl or lived illegally but he didn’t.

87.      The applicant stated that as a Muhajir he experienced discrimination. He applied for the army and he didn’t get accepted and he applied for a government job and he couldn’t get one either He didn’t speak Sindhi the regional language. He said that in order to be accepted you need to dress in a certain way and your language must be similar to theirs.

88.      He confirmed he has not experienced problems because of his parent’s mixed marriage. He said that his in-laws finally agreed. He believes all Muslims are the same. The applicant was brought up Shia because of the applicant’s father. He reiterated that he believes he has been targeted due to his voluntary work with JA and his profile has been increased because of his employment.

89.      The Tribunal asked the applicant about his reporting of the shooting incident and he confirmed an FIR was taken so the said it must be taken seriously. He said an officer called him once and asked him some questions. The officer asked his name and father’s name and he confirmed the address and he asked about the incident and asked about the faces and he said it was dark. He received no call or follow-up with police from the first call reporting the threatening phone call.

90.      The Tribunal discussed relocation with the applicant and spoke about the possibility of relation to Punjab and Lahore. The applicant said he works in [an industry] and all companies of this size are based in Karachi. He said there are 3 head offices. He said that [two international companies] are based in Lahore. However he said that he speaks Urdu and this could be a barrier and he could be identified. He explained that even the country information from DFAT explains that people should not go to Pakistan as it is dangerous. He said that militant groups are everywhere. He said that relocation is impossible and he referred to his wife and his health issues and their inability to obtain suitable health care in the mental health area.

91.      The Tribunal put country information put to the applicant about the reduction in politically motivated violence. He rebutted that there are sleeper cells and they are hard to identify. He stated that 75% of people have a beard and turban in Pakistan and there is a risk that they may target him. He said that between 2001-2004, 48,504.civilians have been killed.

92.      He agrees that there is a significant decrease but the sleeper cells remain. He can be identified and he will continue to support his community. The applicant stated there are more fanatical and extremists than before.

93.      The hearing concluded and the applicant was given the opportunity to make further submission by 23 November 2016.

94.      The agent summarised at the end of the hearing and stated that crime rates and personal safety in Karachi is a major concern and there is a lack of effective control and lack of police surveillance and it should be avoided. He said that with Sindh rangers there have been improvements in crime rates but he questions whether they will stay that way.

95.      He said that the Taliban has a habit of regrouping and reuniting. He said that it is a misconception that they are fractured and not united and their objective is to establish a Sharia state. However the government speak of a fractured Taliban to the degree that they speak of a good Taliban and bad Taliban. The reality is more what is happening at the ground level and this is of concern.

96.      The Tribunal has raised the issue of the applicant and his wife’s health and evidence provided to the Tribunal pertaining to this.  He said that his wife is experiencing mental health issues and she can’t drive or do anything. He said that she has hit the children and that there is a duty of care and he wants to keep the family together. He said that treatment for mental health issues is harder in Pakistan.

97.      A summary of the applicant’s claims of persecution on the following refugee grounds are detailed below:

·     Imputed political opinion, against the Taliban due to his and his brother’s political support of Muttahida Quami Movement (MQM)

·     Race, the applicant’s parents migrated to Pakistan around 1947 at the time of the partition from India. There is significant discrimination in Karachi.

·     Membership of a particular social group being native Urdu speaking Muhajir people in Pakistan

·     and religion, the applicant has been involved in volunteer work with Jaffaria Alliance which is a predominantly Shia organisation. The applicant is a Shia Muslim.

98.      Over the course of the review, the following submissions were received from the applicant:

·The applicant’s wife’s health was repeatedly raised as an issue and the Tribunal received the following documents:

·A referral by [a] Health Centre stating concerns about the applicant’s wife’s emotional and mental health, including anxiety and self-harming thoughts, undated (Tribunal file, f.238)

·A letter from a doctor advising the applicant’s wife is suffering post-natal depression, including a risk of self-harm and suicidal ideation, dated [in] January 2018 (Tribunal file, f.237)

·A letter by the applicant’s wife’s Antenatal Clinic Social Worker, dated July 2017, stating that the applicant’s wife has been struggling emotionally, feeling highly anxious, often worried, pre-occupied with negative thoughts, experiencing nightmares and flashbacks and feeling uncertain about the future. She is seeing a psychologist on a regular basis (Tribunal file, f.229).

·A letter dated [in] April 2017 from a doctor advising the applicant’s wife is pregnant and very stressed and has a constant headache (Tribunal file, f.227)

·A Psychologist letter dated [in] October 2016 stating the applicant’s wife has attended [a number of] appointments for cognitive behavioural therapy since her doctor referred her for treatment for depression and generalized anxiety. It is stated the applicant’s wife’s mental health issues stem from the uncertainty concerning whether their family will remain in Australia, the applicant’s wife has worked as [an occupation] since December 2013 and it outlined that she is a person of good and honest character (Tribunal file, f.75).

·A doctor’s letter dated [in] August 2018 stating that the applicant’s wife is suffering post-natal depression, including risk of self-harm and suicidal ideation (Tribunal file, Part 2 - f.6)

Documents in relation to the applicant’s health:

·A doctor’s letter dated [in] November 2016 stating the applicant was checked in relation to dizziness and high blood pressure and was diagnosed with [medical conditions] (Tribunal file, f.216)

·A doctor’s letter dated [in] June 2015 stating the applicant has raised blood pressure and borderline raised glucose. He was advised to rest (Tribunal file, f.213)

·Referral to [a clinic] dated [in] September 2018 to undertake a home based [study] (Tribunal file, Part 2 - f.11)

99.      The Tribunal received the following material pertaining to violence in Pakistan:

·News report by NDTV titled ‘Pak Army Chief Flies to Karachi After Attacks Including on Qawwal Sabri’, dated 27 June 2016 (Tribunal file, f.80)

·News report by NDTV titled ‘Pakistan Forces Seal MQM Party Headquarters After TV Station Attack, dated 23 August 2016’ (Tribunal file, f.78)

·Information published by Web Desk titled ’80,000 Pakistanis killed in US ‘War on Terror’: report’, dated 29 March 2015 (Tribunal file, f.77)

·Report by the International Crisis Group titled ‘Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls’, dated 22 July 2015 (Tribunal file, f.192)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Karachi’, dated 29 March 2016 (Tribunal file, f.172)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Lahore’, dated 30 March 2016 (Tribunal file, f.164)

·Pakistan travel advice by the UK government, dated 16 October 2016 (Tribunal file, f.149)

·Report by the Asian Human Rights Commission titled ‘Pakistan: Police accused of killing more than 2000 persons in encounters during the year 2015’, dated 27 September 2016 (Tribunal file, f.144)

·News report by the New York Times titled ‘Blast at a Crowded Park in Lahore, Pakistan, Kills Dozens’, dated 27 March 2016 (Tribunal file, f.143)

·‘Part 5 Sectarianism’ of the report by the Centre for Research and Security Studies titled ‘The NAP Tracker’, dated 2016 (Tribunal file, f.141)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Islamabad’, dated 29 March 2016 (Tribunal file, f.135)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Peshawar’, dated 30 March 2016 (Tribunal file, f.127)

·News report by the BBC titled ‘Pakistan Shah Noorani shrine bomb kills 52’, dated 12 November 2016 (f. 111). The representative’s email dated 23 November 2016 explains that this is a news article about a recent bomb blast in Pakistan for which ISIS has claimed responsibility (Tribunal file, f.225).

·Amnesty International report titled ‘Pakistan 2015/2016’ (Tribunal file, f.105)

·The weblink which accesses the ‘Pakistan 2017/2018’ report (Tribunal file, f.225)

·News report by the Shiite News titled ‘Shia Genocide: 259 people martyred in Pakistan during 2015, special report’, dated 1 January 2016 (Tribunal file, f.102)

·News report by the Huffington Post titled ‘Who is Killing Pakistan’s Shias’, dated 26 October 2016 (Tribunal file, f.99)

·Report by Human Rights Watch titled ‘World Report 2016: Pakistan’ (Tribunal file, f.97)

·News report by Press TV titled ‘At least five Shias killed in terror attack in Karachi, Pakistan’, dated 29 October 2016 (Tribunal file, f.92)

·‘Pakistan Travel Warning’ issued by the US Government on 7 October 2016 titled ‘The Department of State warns U.S. citizens against all non-essential travel to Pakistan’ (Tribunal file, f.201)

·Information concerning potential or threatened terrorist attacks in Lahore and other areas of the Punjab, including threats against prominent religious personalities leading Shia and Sunni groups such as Maulana Kifayat Ullah Khan and Bashir Okasha. The source and date of this information is not recorded (Tribunal file, f.199)

·News report by CBC titled ‘Jamaat-ul-Ahrar: Group behind Lahore blast part of ‘saturated’ jihadist market’, dated 29 March 2016 (Tribunal file, f.198)

·Report by Engineer Moez titled ‘“National Action Plan” in Pakistan and State Theory’, dated 11 January 2016 (Tribunal file, f.224)

·News report by Dawn titled ‘Perpetuating sectarianism’ (Tribunal file, f. 222)

·‘Pakistan Travel Advice’ issued by the Australian embassy in Pakistan showing a map of ‘do not travel’ and ‘reconsider your need to travel’ zones. According to a handwritten note on the map this information is from 28 October 2016 (Tribunal file, f.221)

·News report by Dawn titled ‘Exclusive: Act against militants or face international isolation, civilians tell military’ (Tribunal file, f.220)

·Information titled ‘Pakistan Assessment 2016’ obtained from (f.219)

·An official threat alert warning those of the Shia faith will be targeted in Karachi during Moharram (date not fully legible 29 September 20) (Tribunal file, f. 243)

·An article titled ‘US places Pakistan on a special watch list ‘for severe violations of religious freedom’’ (Tribunal file, f. 239)

100.      The Tribunal received the following evidence in relation to the applicant’s claims:

·A reference dated [in] November 2016 on the Jaffaria Alliance Pakistan letterhead confirming the applicant has been an active member since 2007 and noting his participation in fundraising and meetings (Tribunal file, f.215)

·An affidavit dated [in] March 2015 by [a witness] confirming that applicant’s involvement in fundraising for the Jaffaria Alliance following two bomb blasts in March 2013 and that the applicant informed him about the threatening phone calls he received (Tribunal file, f.212)

·A reference letter dated [in] October 2016 by the MQM Pakistan confirming the applicant is a very senior member and has been affiliated with the party since 2006, the applicant has been involved in election events and fundraising, the applicant’s brother and father are also associated with the party, and the family is Mahajir (Tribunal file, f.209)

·A copy of a court petition concerning an alleged incidence of detinue (Tribunal file, f.87)

·A map marked with the location of the car shooting and showing a mosque near his friend’s house (Tribunal file, f.210)

·On 23 November 2016 the Tribunal received a submission by the applicant’s representative in relation to questions raised by the Tribunal at the hearing on 9 November 2016 (Tribunal file, f.196). It may be summarized as follows:

·The representative stated the Tribunal requested comments on country information that there had been a reduction in crimes impacting the safety of individuals living in Karachi. In response it was submitted that:

·The applicant is a high profile individual who has been involved in fundraising and welfare work among the Shia community. He volunteered for the Jaffaria Alliance for 6 years. He also works for an [international] company and earns a high income and lives in a wealthy gated community outside Karachi. The applicant’s network made him valuable to the Jaffaria Alliance, particularly his fundraising. It is contended the applicant’s profile will bring him to the attention of groups that oppose the Shia community in Pakistan.

101.   Country information gathered by the applicant indicates that Karachi and major city areas of Pakistan are not safe and are affected by a high level of criminality and violence targeting civilians and minority groups. The Tribunal was referred to the following:

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Karachi’, dated 29 March 2016 (Tribunal file, f.172)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Lahore’, dated 30 March 2016 (Tribunal file, f.164)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Islamabad’, dated 29 March 2016 (Tribunal file, f.135)

·OSAC report titled ‘Pakistan 2016 Crime and Safety Report: Peshawar’, dated 30 March 2016 (Tribunal file, f.127)

·‘Part 5 Sectarianism’ of report by the Centre for Research and Security Studies titled ‘The NAP Tracker’, dated 2016 (Tribunal file, f.141)

·The South Asia Terrorism Portal’s (SATP) ‘Pakistan Assessment 2016’ (Tribunal file, f.219)

·News report by Dawn titled ‘Exclusive: Act against militants or face international isolation, civilians tell military’, undated (Tribunal file, f.220)

·DFAT Travel Advice (Tribunal file, f.221)

·News report by Dawn titled ‘Perpetuating sectarianism’, undated (Tribunal file, f. 222)

·Report by Engineer Moez titled ‘“National Action Plan” in Pakistan and State Theory’, dated 11 January 2016 (Tribunal file, f.224).

102.   Following the first hearing, the applicant’s representative provided a response to questions raised at the hearing that the Tribunal had enquired about such as the applicant’s brother who is aligned with the MQM. In response it was submitted that he applicant has two brothers, including [name] who is not involved in political or social activities that would cause him adverse attention by the Taliban, however he is wealthy and could be extorted for money, although this has not happened.

103.   The applicant’s second brother, [Mr A], is active in the MQM party, including being a paid employee, and is also a paid government employee in a role created for his benefit by MQM members with links to the government. It is advised that [Mr A] faces threats because of his political affiliation and profile in the party, he could be kidnapped or extorted (although this has not happened), and he has relocated.

104.   The applicant and his family support the ideals of the MQM. Due to the applicant’s wealth and position at an international company he is a target for extortion. He does not know why his brothers have not been targeted at the time.

105.   The representative stated that the applicant was requested to comment on how the two gunmen were at the side of the road and did not attack him as he came out of his friend’s house. In response it was submitted that in Pakistan individuals have guns at home and it is highly unlikely that the individuals that targeted him would enter his friend’s house and attack him due to the risk. He stated that attacks occur away from homes. He stated that there would have been people attending the mosque walking in his friend’s street at the time of the attack. He explained that due to stress the applicant could not recall this point at interview.

106.   The applicant arrived at his friend’s house at 7pm for a fast breaking party and went home an hour later. His car was parked outside his friend’s place and there is street lighting. The applicant provided a map showing the mosque near his friend’s house and explaining his route home and stated the street where the attack occurred was less residential and had less lighting. It was explained that the applicant cannot know the mind of the attackers, however he speculated that his attackers may have been observing him at the end of his friend’s street, noticed him leave, and knowing there is one way to get to [named street] they would have parked at the location in the street where they waved him down.

107.   He also responded to the Tribunal’s concerns that that attack may have been random and explained that given the attack occurred in the context of other threats such as phone calls and earlier threats the applicant does not believe the attack was random.

108.   The representative raised the issue of potential instability in the applicant’s country and referred to the OSAC reports for information about the current situation in Pakistan. It was explained that the information provided is intended to show the reality of the circumstances confronting ordinary Pakistanis.

109.   The Tribunal put to the applicant in the first hearing that the success of the National Action Plan targeting Karachi has reduced violence significantly. The applicant’s submission challenged this and referred the Tribunal to the report ‘“National Action Plan” in Pakistan and State Theory’ and the NAP Tracker report. It is noted that page 87 of the NAP Tracker report advises that the Shia community faces the worst of the attacks and violence against Shias has risen. Attention is drawn to the Ismaili’s, a Shia sect, who were targeted in the Safoora Goth attack in Karachi leaving 46 dead. It is noted that the victims were killed solely because of their Shia faith and the report highlights the state’s inability to protect Shias.

110.   The existence of sleeper cells and the Taliban’s freedom of movement in Pakistan were raised. It was suggested that any success government forces have had against the Taliban is temporary and the Taliban will come back stronger. It is noted that reports indicate that ISIS is making inroads in Pakistan and the group is focused on eliminating the Shia people. The Taliban are involved in extortion and other criminal activities to raise funds.

111.   The applicant claims that he is identifiable as Muhajir and he will continue to support his community and this is what has brought him adverse attention. He says he can be killed anywhere and in Pakistan life is only worth the cost of a bullet.

112.   The applicant states terrorists are more fanatical than previously, the non-Muslim minority is 4% of the population, the security forces have not stopped the killing of minorities in Pakistan, and the retirement of leaders within the security forces, General Reheel Sharif and Rizwan Akhtar, will bring further instability.

113.   The Tribunal is requested to consider the applicant’s health if considering relocation. The applicant did not have any evident health conditions in Pakistan, but he now has a stress condition impacting his health and potential to gain employment in Pakistan. The safety of his children is heavy on the applicant’s mind.

114.   The applicant’s wife is unwell and suffering from anxiety. Due to her poor mental health the children have been mistreated. She is receiving treatment from a psychologist.

115.   The Tribunal is requested to consider the rights of the children and the impact leaving Australia would have on them, including their rights under the Convention on the Rights of the Child to live in peace, to be educated, to flourish and to reach their potential. It is stated this consideration is especially relevant in considering relocation. The children have been in Australia for a long period of time and the eldest child is attending school. The applicant fears for his children should anything happen to him. The applicant’s wife’s health is extremely fragile.

116.   The representative disputes the Tribunal’s suggestion at hearing that Lahore would be a safe place to relocate and states ‘for the reasons given above’ relocation to Lahore is not an option.

117.   In assessing relocation the Tribunal is requested to consider the family’s ability to sustain itself in an unfamiliar environment. It is noted that the applicant does not have any family in the Punjab or Lahore and as a Muhajir he will be marginalized and unable to find employment or accommodation. He will also not be safe because of his Shia religious beliefs and his membership of an organization that raises fund and collects goods for poor and needy people. In combination with his previous activities, this will bring him to the attention of his opponents in Karachi.

118.   On 21 February 2017 the Tribunal received an email from the applicant’s representative requesting consideration of (Tribunal file, f. 226) a web link concerning eight blasts in five days which have killed over 100 people in major urban areas of Pakistan and Tareek-E-Taliban and Daesh have taken responsibility.

119.   Also provided was a web link concerning the targeting of Shia shrines, particularly a suicide attack that took place at the shrine of Sufi Saint Hazrat Lal Shahbaz Qalandar in Sehwan Sharif Sindh which resulted in the closure of the Pakistan/Afghanistan border. It is submitted that the applicant is fearful of attacks targeting persons of the Shia faith and the attacks planned by the Taliban challenge the idea that the authorities have reduced the incidence of violence generally or targeting minority religious groups such as the Shia.

120.   On 16 January 2018 the Tribunal received submission from the applicant’s representative (Tribunal file, f. 244). It may be summarized as follows:

121.   The applicant is concerned about his wife’s mental health (which is extremely fragile and the Tribunal is informed that reports will be provided) and advised that due to the treatment of religious minorities she fears their children being exposed to the hostile environment in Pakistan, especially towards the Shia minority. Supporting evidence included a statement by the Asian Human Rights Commission titled ‘Pakistan: Enforced disappearances and violations of religious freedoms becoming point of isolation in world community’, dated 10 January 2018 (Tribunal file, f. 242)

122.   A Statement by the Asian Human Rights Commission titled ‘Pakistan: Has the country abandoned it children?’, dated 12 January 2018 (Tribunal file, f. 241)

123.   Advice that the applicant claims that religious rights are not being protected by the authorities in Pakistan and he fears harm because he is an adherent to the Shia faith and he has a profile for supporting and working within the Shia community in Pakistan. It is submitted that the information provided supports the applicant’s contention that religious minorities are being abandoned by the government. Reference is made to ‘Sleeper Cells of terrorists in Pakistan’ and it is stated the information submitted supports the applicant’s contention that sleeper cells are operating in Pakistan. The applicant says the events described in the article are not random. The following link was provided (Tribunal file, f.244)

124.   An official threat alert warning those of the Shia faith will be targeted in Karachi during Moharram (date not fully legible 29 September 20) (Tribunal file,f. 243).

125.   An article titled ‘US places Pakistan on a special watch list ‘for severe violations of religious freedom’’ (f. 239)

126.   The applicant claims to fear being killed by the Taliban and he cannot relocate because there are security issues throughout Pakistan. He has provided details of Lahore, Quetta, Islamabad and Rawalpindindi. He also submitted that due to his and his wife’s mental health issues he cannot relocate and there are limited mental health resources to support her.

127.   The applicant claims that state protection is ineffective and quotes several overseas reports.

128.   The final submission pertained to the applicant’s dependent children and requested that the Tribunal consider the rights of the children because they were concerned that Karachi is not a safe place.

129.   The applicant stated that his wife has [medical conditions] as well as depression. The applicant has stress however he stated that his wife is more serious.

130.   The Tribunal conducted a hearing on 29 October 2018 to clarify further submissions made by the applicant and also to clarify points of concern.

131.   The applicant confirmed with the same degree of clarity the events including the mobile phone calls and attempted shooting as the key issues that made him concerned about his wellbeing and why he applied for a protection visa. He believes he was profiled as someone who could be targeted for money because of his senior position with [Company 1] but overarching was his voluntary work with JA.

132.   The Tribunal asked the applicant about how he managed to secure funds to bring to Australia when he was selling his home and wanting money to support his trip. This point at the previous hearing was never clarified. He explained that his brothers gave him the deposit money once the contract of sale was signed and they had to wait until later for the remaining amount of money to be released and this was then divided up minus his previous takings He confirmed that the deposit was paid [in] August 2013 and settlement 6 months later.

133.   The applicant explained that in his view the shots were about his JA involvement but the Tribunal stated that this was speculative. The applicant accepted this but also expressed his concerns that there are numerous examples of killings in Karachi and throughout Pakistani. He said he has to live in this city and he cannot survive.

134.   The applicant was again asked about his brother who worked for MQM and the Tribunal explained it had concerns about why the applicant was targeted when his brother who worked for MQM in a paid role was not.

135.   The applicant became emotional and explained that his brother has subsequently died. The Tribunal asked about this and for further information. He stated that his brother was killed by a [vehicle]. He said that it occurred [in] August 2017. The applicant stated that the [perpetrator] ran from the scene but was later caught. He stated that the case is still to be heard within the courts. He also stated that the [perpetrator] owned the [vehicle] and his ID indicates he works for AL Sunnath Wal Jamart, a political party known to be anti-Shia and with links to Al Qaida, the Taliban and Lashker e Jhungvi. However until the case goes to court, the outcome will not be known. The Tribunal requested a copy of the death certificate. The death certificate was supplied and it indicated that [Mr A] died due to a “road accident”. (Tribunal file 2, f.64).

136.   The following additional submissions were made to the Tribunal prior to the second hearing on 23 October 2018. (Tribunal file 2, (ff 41--52).

137.   A referral from a home based [study] dated [in] September 2018 for the review applicant and a further information sheet on the test.

138.   A medical certificate in relation to the applicant’s wife dated [in] September 2018 advising that the patient had been feeling down and depressed and suicidal. A psychologist recommendation was made and it was accompanied by a prescription for a [drug].

139.   A medical certificate dated [in] June 2017 confirming the applicant’s wife’s pregnancy and that she had Generalised Anxiety Disorder.

140.   An undated medical certificate referring the applicant’s wife to a doctor and expressing concerns about her mental health.

141.   A letter from the doctor of the primary review applicant confirming he has [medical conditions] and post-traumatic stress disorder and sleep issues and depression. This is dated [in] October 2018. 

142.   A letter from the principle of the dependent children on the review application advising that they are valued members of the school, community and are achieving across all areas and the parents are engaged.

143.   A letter from the maternal health nurse dated [in] October 2018 confirming that the applicant’s wife has expressed to her about her ongoing anxiety pertaining to their family situation.

FINDINGS AND REASONS

144.   At hearing the Tribunal observed the applicant answered the Tribunal’s initial questions about his background and personal circumstances calmly and responsively. 

145.   I accept the applicant is suffering from significant stress as a result of his current immigration situation and I accept based on the medical evidence supplied that the applicant suffers [medical conditions], PTSD and depression and is currently undergoing [medical] tests.

146.   I also accept the applicant’s wife has been diagnosed with anxiety and depression and suicidal tendencies were recorded.

147.   I consider the applicant was able to respond to the Tribunal’s questions spontaneously and relevantly at hearing and his condition did not appear to impact on his ability to respond..  He was represented during the review process and given time before and during the Tribunal hearing to consult with his representative.  His representative was granted time after the hearing to provide further submissions. A second hearing was conducted and further submissions were also supplied. I am satisfied he has the capacity to participate in the review application and that he has been provided with a real and meaningful invitation to give evidence and present arguments relating to the issues in this case.

Country of nationality

148.   It is not in dispute that the applicant is a Pakistani national.  He entered Australia on an apparently genuine Pakistani passport. The Tribunal finds that the applicant is a citizen of Pakistan and has assessed his claims against that country.

149.   The Tribunal accepts the secondary [applicants] are also Pakistani nationals and are the wife and children of the primary review applicant.

The applicant’s personal background

150.   I accept the applicant originates from Karachi, Pakistan noting this is consistent with all the information provided to the DIBP in the applicant’s file.  I accept the applicant and his family came to Australia as the holders of a tourist visa. 

151.   The applicant explained that he travelled overseas with his family once a year and he had planned to travel to Australia and consequently had applied for a tourist visa to Australia prior to deciding he needed to seek protection.

152.   I accept the applicant is of Shia Muslim religion and he grew up in a family comprising his parents and siblings of which one brother is politically active.  I accept his oral evidence his parents are no longer alive but were progressive Muslims.  I also accept that the applicant is married and has three children at the time of the decision however only the two eldest children are on the applicant’s current application.

153.   Based on the identity documents on file for each of the three dependents, I accept that [Second named applicant] is the applicant’s wife and is the first dependent on the application. I accept that [Third named applicant] is the applicant’s daughter and is the second dependent applicant on the application. I also accept that [Fourth named applicant] is the applicant’s child and is the third dependent on the application.

154.   I accept that the applicant studied in [Country 1] and returned to Pakistan in 1992 to finish his schooling.

155.   I accept that the applicant is a member of an ethnic group namely, Muhajirs and that he is a supporter of the MQM and his brother works for MQM in a paid capacity and also the government.

156.   Given the applicant’s knowledge of and ability to speak passionately about his ideology and ethnicity I accept that he will continue to pursue his interest and support of MQM and JA should he return to Pakistan now or in the near future.

157.   I accept that the applicant volunteered his time to support victims of the bomb blast and to raise money for relevant causes supported by JA when he was in Pakistan. There is documentary evidence supplied to support the bomb blast and he spoke about the type of work he did in a clear and consistent manner.

158.   I also accept that the applicant was [a senior] in the multinational company [Company 1] and that his role was [in] the company based in Pakistan and that the applicant was responsible for [his] region and was well renumerated.

159.   I do not accept that this position alone profiled the applicant in such a way as to make him a target for the Taliban or for any other anti-Shia groups. I do not accept that these reasons individually would profile the applicant to such a degree he would be targeted. As the applicant told the Department delegate, he was not aware of anyone else who was targeted.

160.   I accept that the applicant volunteered with JA and assisted in fundraising and general support of the Muhajir community.

161.   Whilst the Tribunal does not accept that individually these positions would make the applicant a target for extortion or harm, the Tribunal accepts that cumulatively these factors are reasonable to make someone a target.

162.   Whilst the Tribunal would not accept alone phone records as sufficient evidence to support a claim of threatening phone calls because it is impossible to verify the source or content of the call given how long ago it occurred, the applicant’s oral evidence has been so measured and consistent that it is reasonable to place some weight on the evidence supplied. As such the Tribunal accepts that the applicant received threatening phone calls about his involvement in JA and requesting he stop and requesting extortion money and identifying that the applicant had made reports to the police.

163.   The Tribunal a places further weight on country information such as newspaper articles and country reports highlighting the targeting of Shia Muslims, supporters of JA, Muhajirs and the general level of corruption and violence contained within Karachi and other areas of Pakistan. I therefore accept that it is not unreasonable to draw the conclusion that the applicant has sufficient reasons to be profiled and targeted. 

164.   Whilst the Tribunal expressed some concerns about the timing of his visitor visa grant being more than coincidental with his protection application that alone is not sufficient to counter the evidence provided by the applicant to support his profile as a person who has been and may in the future be targeted either for money or for his support of JA and his political ideology and ethnicity.

165.   The Tribunal acknowledges that the applicant provided a First Incident Report to support his claim pertaining to the shooting. The FIR as it stands shows that an incident was reported. He also provided photos of a damaged car. The report in itself is simply a report and whilst it does not prove that the event occurred, the evidence supplied, namely the consistent oral evidence over the course of this case being managed by the Tribunal as well as the accepted profile of the applicant and the accepted reasons why he may be targeted, lead the Tribunal to conclude and accept that his car was shot at. The Tribunal has struggled to conclude that this occurred for any specific reason as does the applicant. However logic suggests that his profile would mean he would be targeted more than it being a random drive by shooting or carjacking.  The case has never been proven and as such the possibility that this incident was specifically targeting the applicant cannot be dismissed.

Discrimination against Shias in Pakistan

166.   DFAT assesses that some anti-Shia discrimination does occur throughout Pakistan, but states it is typically low level.  Shias are reportedly well-represented in the professional community in Pakistan and DFAT reports there is no credible evidence of systemic discrimination against Shias in obtaining admission to the public service, police, military or the private sector.  DFAT assesses Shias don’t face significant levels of discrimination when seeking employment because of their religious affiliation, although there are perceptions of discrimination against Shias at higher levels of some organisations.

167.   DFAT reports that Sunni and Shia students attend the same public and private institutions.  They are well represented in Parliament, regularly contesting elections for mainstream political parties and there have been a number of high profile Shia leaders for political parties, including in the positions of president and prime minister.[1]

[1] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.38-3.41

168.   I accept that as a Shia, the applicant and his family may face a low level of discrimination if they return to Karachi.  However not all instances of discrimination will rise to the level necessary to constitute persecution.  Under s.5J(4)(b), persecution must involve ‘serious harm’ to the person and  s.5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test.  On the evidence before me, I do not accept there to be a real chance that the applicant will face serious harm for the individual reason namely their Shia religion if they return to Karachi, now or in the reasonably foreseeable future.

Risk of future harm due to MQM membership

169.   The Tribunal relies upon the death certificate supplied by the applicant relating to this brother’s death and accepts that the applicant’s brother who worked for MQM and also worked in the government was killed by a [vehicle]. There is nothing conclusive that suggests however that this was due to his political involvement with MQM. The Tribunal accepts that the case is still before the courts and that the driver is being investigated and that it is claimed that he worked for an anti-Shia organisation. Whilst this is not conclusive, the Tribunal gives this minimal weight in determining whether the applicant has been or would be targeted due to his MQM support.

170.   The Tribunal accepts that the applicant’s brother worked for the MQM and that his father was a member and he was also a supporter. DFAT assesses that MQM members are subject to ongoing violence in some parts of Karachi. However, the overall risk of violence has reduced since the publication of the DFAT Country Report (dated 14 April 2015), and parts of the city such as Azizabad remain relatively free from politically-motivated, terrorist and sectarian violence. Individually I do not accept there to be a real chance that the applicant will face serious harm based on his or his family’s association with MQM now or in the reasonably foreseeable future.

Risk of future harm from militants in Karachi as a Shia

171.   At hearing I discussed with the applicant the contents of DFAT Country Information Report: Pakistan.  DFAT reports that Shias make up 15-20% of Pakistan’s population and Shias are spread throughout the country, with significant numbers living in urban centres throughout Pakistan, including Karachi.  Karachi is the largest city in Pakistan and reportedly has a population of 20-24 million people.  Although some Shias live in enclaves in Karachi and other urban centres, DFAT reports the Shia and Sunni communities are generally well integrated.[2]

[2] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.33

172.   Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools and Shias continue to face a threat from anti-Shia militant groups including Lashkar-e Jhangvi, Sipah-e-Sahaba and various factions of the Pakistani Taliban.  DFAT reports that about 820 Shias have been killed in sectarian violence throughout Pakistan since the beginning of 2013, out of an estimated population of 30 million Shias.[3]

[3] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.42 – 3.43

173.   While sectarian violence affects people of all religions and sects in Pakistan, Shia have traditionally represented a higher proportion of the casualties, making up around 60% of the people killed in sectarian violence in Pakistan in 2015, despite comprising only 15-20% of the population. However there was a significant decrease in sectarian violence across Pakistan in 2016 and Shias made up a relatively small proportion of the total victims (less than 15%). The two biggest sectarian attacks in Pakistan during 2016 did not target Shias, but other religious minorities.  DFAT reports an attack on a Shia religious gathering in Karachi on 30 October 2016, killing six people.[4]

[4] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.43

174.   Overall DFAT assesses that most Shias in Pakistan face a low risk of sectarian violence, although the level of risk varies by geographic location and for members of specific groups.   Most Pakistanis, including Shias, are able to practise their religion without significant interference by the state.

175.   While Karachi has historically experienced high levels of violence, all violence, including sectarian violence, has fallen significantly in recent years because of the 2015 National Action Plan (NAP) and Operation Zarb-e-Azb to combat terrorist, separatist and criminal groups in Pakistan.[5]  This has resulted in the highly visible presence of the federal paramilitary police, the Rangers.  The number of fatalities from sectarian violence in Karachi fell from 216 deaths in 2014 to 38 deaths in 2016 and those figures include sectarian violence targeting non-Shia groups including Sunnis, Ahmadis and other groups as well as Shia.

[5] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.33

176.   DFAT reports an attack on Shia religious gathering in Karachi which killed six people on 30 October 2016, however overall DFAT assesses that there is currently a low level of sectarian motivated violence in Karachi within a context of a moderate level of overall violence, particularly once the size of the city population is taken into account.[6]

[6] DFAT, DFAT Country Information Report Pakistan 1 September 2017 at 3.47-3.50  

177.   These changed conditions necessarily impact on the assessment of whether the applicant’s fear of returning to that country is well-founded as at the time of the Tribunal’s decision.  In assessing the applicant’s claims to fear harm in Pakistan, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward looking test. 

178.   When the above information was discussed with the applicant he acknowledged that the operation has contributed to a reduction but provided additional material to support the fact that violence and attacks continue and that this may indeed be momentary.

179.   I have considered the parts of the DFAT report to which I have been referred by the applicant’s representative.  I acknowledge that the longer term effects of the NAP and Operation Zarb-e-Azb on the security situation in Karachi are not yet known.  I accept that sectarian violence in Pakistan disproportionately affects religious minorities, including but not limited to Shias.  I accept that sectarian violence continues to occur throughout Pakistan, including an attack in October 2016 in Karachi.  I note the evidence of further attacks in other parts of Pakistan contained in the submissions of the applicant’s representative – an attack on a Sufi shrine in Sehwan, Sindh province on 16 February 2017.

180.   However the DFAT information cited above indicating that sectarian violence has fallen significantly in Karachi since the commencement of NAP and Operation Zarb-e-Azb, together with the size of the Shia population in Karachi, causes me to consider that the chance that the applicant would be targeted or otherwise caught up in a sectarian attack in Karachi for reasons of simply his Shia religion is remote and merely speculative.

Risk of future harm by the Taliban due to a combination of characteristics – Shia, MQM Member, JA volunteer, family supporters of MQM and highly paid [position] of a multinational

181.   The Tribunal accepts that the applicant experienced a previous attempt of extortion, threatening phone calls and attempted murder when in Pakistan.

182.   The Tribunal finds that the cumulative elements of the applicant’s situation, namely his employment status, being an Urdu speaking Muhajir and his family support for MQM and JA have profiled him in such a way as to make him a possible target for extortion with the underlying issue being his support of JA. The Tribunal accepts that this has occurred and whilst some time has lapsed since the applicant was in Pakistan, it is the applicant’s ongoing desire to remain a supporter of the Muhajir community and hence JA. Consequently the Tribunal accepts that the combination of characteristics pertaining to his political ideology, his employment and his ethnicity have profiled him and subsequently he has been targeted by the Taliban.

Type of harm

183.   I now turn my mind to considering whether the harm amounts to serious harm. In the past the applicant has been threatened through phone calls and shot at. The Tribunal finds that the threats and subsequent shooting with intent to kill equates to serious harm. I find that the applicant has been targeted because of his involvement in JA. The applicant has indicated his intention and ongoing interest in supporting his community and has stated he would continue to be involved in MQM and JA should he return to Pakistan.  As such I find that the applicant could face the same harm in the future.

184.   The threats and shooting incident relate to the applicant’s fundraising support for Jaffaria Alliance which is a welfare group looking after those of the Shia faith and his and his family’s involvement in MQM which is the Mohajir-based Muttahida Qaumi Movement (MQM) which is a political party.   As such he is facing harm for the cumulative reason of being a member of a particular religious group and political group.  As such I find that there is a Refugee Convention nexus.

185.   I also find that the harm they face is ‘systematic and discriminatory’ on the part of the first named applicant’s family.

Relocation

186.   The Tribunal has considered whether relocation to another part of Pakistan outside of the capital city of Karachi, the first applicants' home area, is reasonable. During the hearing, it was discussed that Lahore could be a possibility for the applicant and his family.

187. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v MIELGEA (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a risk of such harm by resettling and living in another part of his country.

188.   Having accepted that the applicant has a well-founded fear of persecution in Karachi, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.

189. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

190.   The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan. The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.

191.   In his oral evidence and in written submissions to the Tribunal the applicant has asserted that it is both not safe for him to relocate to another area to avoid the harm he fears from the Taliban in Karachi and unreasonable given his particular personal circumstances. He submits that Taliban members have fled to all parts of the country, that no-one knows where they are, and that they have strong networks throughout the country.

192.   He states that because he is a Muhajir he is part of an ethnic minority who speaks Urdu and he would be treated with suspicion wherever he went.

193.   The representative submits that given the applicant's ongoing involvement with JA and his family’s support of MQM and the public nature of fundraising and his roles as a sales manager for very big multinationals he has a profile that would place him at risk of harm wherever he resided in Pakistan, because Taliban networks extend throughout the country and his return to Pakistan would be discovered through his family, friends and community. It is further submitted that it would not be reasonable to expect the applicant to relocate given his lack of familial links and the challenges he would experience in finding employment and accommodation. It is submitted that his health issues would make him further vulnerable to exploitation and serious harm given he would not have a support network to assist him and given it is likely that he would not be able to obtain adequate medical support given the level of medical resources in Pakistan. Furthermore he stated and provided evidence to show that his wife is also suffering from PTSD and has suicidal tendencies and they have young children who have a right to be brought up in a safe environment.

194.   The Tribunal has given careful consideration to these issues. As discussed above, while the Tribunal does not accept that individually the applicant has a profile as a JA volunteer and supporters of MQM or as a consequence of his employment or that he is a Shia and Muhajir, the Tribunal accepted that cumulatively, the applicant's activities combined with those of his father and brother resulted in him facing a real risk of serious harm. While the Tribunal accepts that the Taliban operate throughout Pakistan the Tribunal does not accept that the country information supports the premise that Taliban networks are such that someone with the applicant's profile would be of interest to and therefore targeted by the Taliban wherever he went in Pakistan, for example in Lahore. On the evidence before it, the Tribunal does not accept that the applicant's actual or imputed political views or his religion, his activities on behalf of the JA and/or his employment , or his association with his father and brother prior to his passing when he worked for MQM  make his relocation to Lahore for instance, unsafe for the applicant.

195.   As well as considering whether the applicant faces a real chance of serious harm outside of his home region, however, the Tribunal must also consider whether it is reasonable, in the sense of 'practicable', for the applicant to relocate to another area of Pakistan where he would not face a real chance of serious harm. This assessment must be made in light of the particular circumstances of the applicant and the impact upon him of relocation within Pakistan.

196.   Medical evidence before the Tribunal indicates that the applicant and his wife have been seeing doctors and psychologists since 2015 (and that the applicant has been assessed as having symptoms which are consistent with PTSD and [medical conditions] and that his wife has been diagnosed with anxiety and reported to have suicidal tendencies).  Both were diagnosed with depression. The country information makes clear that mental health services in Pakistan are not at the same level as in Australia, psychiatric and psychological services are available in major hospitals (public mental health treatment is free with free medication) and in the private healthcare system (which has proliferated and been embraced by the majority of Pakistanis due to the generally poor quality of the public health system). Medication is easily available.

197.   In considering the applicant's circumstances and the 'reasonableness' of him relocating within Pakistan the Tribunal has considered advice in the DFAT Country Information report that Muhajir (Urdu-speaking immigrants from India), equate to a only 7.5 per cent of the community and that MQM members who are made up of Muhajirs are targeted and discriminated against and that in Karachi they are subject to ongoing violence. The Tribunal finds this advice is consistent with concerns expressed by the applicant.

198.   Noting the medical evidence indicating that the applicant meets the diagnostic criteria for PTSD and his wife anxiety and the advice that persons with PTSD need to know that they feel completely safe and the applicant would not feel safe even if he relocated away from his family and village, but would be isolated, which would not be of any benefit to him, the Tribunal accepts the applicant's ongoing mental health issues will impact on his ability to relocate within Pakistan. While the Tribunal is mindful that the applicant has found accommodation and work in Australia and therefore has in the past demonstrated a degree of adaptability and resilience in terms of living in new and unfamiliar environments, the Tribunal accepts that this is in an environment where he feels safe and can readily access high quality support services. On balance, and considering the totality of his circumstances, the Tribunal accepts that, given the applicant's significant mental health concerns and lack of family support outside of Karachi, returning to Pakistan and having to relocate to a city like Lahore, where he would need to find accommodation and employment and might suffer harassment by police and security forces, would be a major stressor on the applicant which could result in a significant decline in his mental health. Given the applicant's mental health concerns and associated vulnerability, and his lack of family support outside of Karachi, the Tribunal concludes it would be very difficult for the applicant to re-establish his life outside of Karachi.

199.   For these reasons, the Tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan where he has no family or social supports, to escape the harm he fears in Karachi.

200.   For these reasons, relocation anywhere within Pakistan outside the first applicant's home area is not reasonable.

Conclusion on refugee criterion

201. For the reasons given above, the Tribunal accepts that the applicant faces a real chance of serious harm from members of the Taliban in Karachi now or in the foreseeable future. For these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention). Therefore the applicant satisfies the criterion set out in s.36(2)(a).

202. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

203. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that [Second named applicant] is the wife of the first named review applicant, that [Third named applicant] is the dependent daughter of the first named review applicant and that [the Fourth named applicant] is the son of the first named review applicant and that they are therefore member of the same family unit.

204.    As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

205.      The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Rachel Westaway
Member