1517924 (Refugee)

[2016] AATA 4741

1517924 (Refugee) [2016] AATA 4741 (14 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517924

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Margie Bourke

DATE:14 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 November 2016 at 4:34pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] December 2015.

3. The applicant appeared before the Tribunal on 14 November 2016 to give evidence and present arguments.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The tribunal has before it the Department file in relation to the applicant’s claim for protection and the Department’s file in relation to the applicant’s application for [certain] visas, and the information the applicant has submitted to the tribunal. The tribunal has considered the Department’s decision record dated [in] December 2015. The tribunal has considered country information provided by the applicant and also sourced independently by the tribunal in relation to the Pakistan People’s Party, and the Student Federation wing of the Pakistan People’s Party. The tribunal has considered the applicant’s written claims provided with his application forms and the oral evidence the applicant gave at the hearing.

21. The tribunal has considered the applicant’s passport and is satisfied that the applicant is a citizen of Pakistan and his passport was issued [in] 2006. The tribunal is satisfied that the application for the protection visa was lodged in Australia [in] June 2014. The tribunal is satisfied that the application for the visa was made by the applicant outside his country of nationality.

22. The tribunal is satisfied that the applicant was born in [Country 1], and lived there until he was [age]. The tribunal is satisfied that the applicant’s father worked in [location] for the Pakistani [organisations], prior to returning to Pakistan in 1998. The tribunal accepts the information contained in the Department’s decision record that the applicant is not entitled to apply for [Country 1] citizenship at this time as he is over the age of 18 and as his parents are not citizens of [Country 1]. The tribunal accepts that the applicant does not have the right to enter or reside in a third country.

23. The tribunal has considered the written and oral evidence before it. The tribunal is satisfied that the applicant and his family are Shia Muslims. The tribunal is satisfied that after returning to Pakistan the family resided in Lahore. The tribunal is satisfied that the applicant attended [name] school and university in Lahore.

24. The applicant discussed with the tribunal in detail the history, formation, organisation and functions of the Pakistan People’s Party. The applicant stated his knowledge of the formation of the party came from the education from his father and then his own involvement in a Student Federation wing of the party from 2004.  The tribunal accepts that the Pakistan People’s Party is predominantly Shia, historically had a democratic purpose to empower the poor and minorities, and its religious and political affiliation is intertwined.

25. The tribunal is satisfied, based on the consistent and detailed evidence of the applicant that his father was involved in the Pakistan People’s Party and acted as an [position] to [name], who was the [official] of the Pakistan People’s Party in Punjab. The tribunal is satisfied that the applicant accompanied his father on his visits to people who were well-connected leaders in the party, and the applicant was given roles of responsibility and trust to deliver and handover documents on his father’s behalf. The tribunal is satisfied that the applicant became well known within the Pakistan People’s Party. The tribunal is also satisfied that the applicant became more prominent and took over a lot of his father’s duties after the 2008 elections.

26. The tribunal is also satisfied that the applicant was actively involved in the student Federation wing of the Pakistan People’s Party. The tribunal is satisfied that the applicant was involved in [activities] attracting people to join the student Federation. The tribunal is satisfied that the applicant was involved in the election campaign 2007. The tribunal is satisfied that the applicant was deeply affected by the assassination of the leader of the party, Benazir Bhutto, on 27 December 2007. The tribunal accepts the applicant’s evidence that after the assassination the Pakistan People’s Party was demoralised, the party felt ‘scattered’ and there was violence leading up to the elections in February 2008. The tribunal is satisfied that by 2010 the applicant held the position of [official] of the [name] school and university branch of the Student Federation wing Pakistan People’s Party in Lahore.

27. The tribunal has considered the evidence of the applicant that although the Pakistan People’s Party was returned to power and won the election in February 2008 there was increased violence targeting and trying to destabilise the government after the election. The applicant stated that he first came into contact with the two militant groups Lashkar-e-Jhanghki and Ahle Sunnat Wal Jamat at that time. The applicant stated that these two groups were really small satellite groups of the Tehreek-e-Taliban, although since then the Lashkar-e-Jhanghki has grown into a powerful group.  The applicant stated that the opposition political party, the Pakistan Muslim League (N) used the small militant groups to act on their behalf to destabilise the political party in power.

28. The tribunal accepts the evidence of the applicant that he and his parents were concerned by the increased political and sectarian violence after the death of their leader. The tribunal is satisfied that the ongoing riots and violence became too much and the applicant’s strategy to avoid this situation was to go to [Country 2] to work for a period of 10 months from December 2010 until September 2011.

29. The tribunal is satisfied that the applicant returned to Pakistan, and resumed his involvement in the student Federation wing of the Pakistan People’s Party at the [name] school and university branch in October 2011. The tribunal has considered the evidence of the applicant and is satisfied that in May 2012 a letter written in Urdu was thrown into his house. The tribunal accepts that the letter was a standard letter, delivered by the Lashkar-e-Jhanghki. The tribunal accepts that the letter stated that the militant organisation had completed a successful operation in the Hazara division was moving on to other areas of Pakistan. The tribunal accepts that similar letters have been sent to prominent people, shopkeepers and other Shias. The tribunal accepts that in many instances the letters were followed up by drive-by shootings, or other acts of violence with responsibility claimed by the Lashkar-e-Jhanghki organisation.

30. The tribunal is satisfied that the applicant and his family responded to the receipt of this letter seriously. The tribunal is satisfied that another incident also occurred when the applicant was not in the house but when he still lived in Pakistan. The tribunal accepts the applicant’s evidence that there was a misunderstanding in the interview with the Department delegate, and this second incident did not occur after he had left Pakistan.

31. The tribunal accepts that a group of people stormed into the family house, pushed his mother around, smashed pots and told his parents that “when they were complete” they would return. The applicant stated he assumed they meant when he was also there the attackers would kill all three of them. The tribunal accepts the evidence of the applicant that he does not know why the attackers did not hurt or kill his parents. The tribunal accepts the applicant’s evidence that he assumes the attackers were either instructed to take or kill him, or were trying to force his family to cease involvement in political activities, or that he simply does not understand the motivation.

32. The tribunal is satisfied that the applicant came to Australia to study a soon as he could after receiving the threatening letter and the attackers had been at his family home. The tribunal is satisfied that the applicant initially intended to study for a period of time and then return to live in Pakistan with his parents. The tribunal is satisfied that the applicant initially intended to seek safe harbour for a temporary period as he had done when he went to work in [Country 2]. The tribunal is satisfied that the applicant followed his parents’ advice that it was not safe for him to return in 2014.

33. The tribunal is satisfied that the applicant’s parents also had concerns for their safety, and have been staying at different relatives and friends homes rather than their own home since the attackers had come into their own home. The tribunal accepts the applicant describes his father as a patriot who will not leave his country. The tribunal accepts the applicant’s evidence that his father no longer has any involvement with the Pakistan People’s Party.

34. The tribunal has considered the applicant’s evidence that in 2014 there was another letter dropped at their family home that was forwarded to the applicant’s parents. The tribunal has considered the applicant’s evidence that this was not a standard letter but instead records that the Lashkar-e-Jhanghki wants every Shia who has lived in the home dead. The tribunal accepts that the people are not named. The tribunal finds the applicant to be credible in his evidence. The tribunal finds that the applicant’s parents and the applicant have lived in fear after receiving the threatening letters, and that the applicant and his parents have taken the threats seriously.

35. The applicant told the tribunal that the majority of the state police are Sunni Muslims. He stated that the current party in power, the Pakistan Muslim League (N), is also predominantly Sunni. The applicant stated that the current party in power has funded the Lashkar-e-Jhanghki. The applicant stated the police are corrupt and he could not risk going to the police station. For all these reasons the applicant stated that he would not get protection, being a Shia, from the authorities or the police in Pakistan. The applicant stated if he was on a hit list and he returned to Pakistan he would not get a letter warning him - they would just kill him straight away.

36. The applicant also stated that the Lashkar-e-Jhangki is now a powerful organisation with a substantial presence in the four provinces in Pakistan. The applicant stated that when he applied for a passport or an identity card he was required to identify as either Shia or Sunni.  Further the applicant stated that there could be  Sunni informants that would identify him and advise the Lashkar-e-Jhanghki organisation anywhere. The applicant stated that he could not be safe in any area of Pakistan.

    Country Information

37. The tribunal has considered an article in The Economist dated 18 February 2008 entitled Ballots and Bombs in Pakistan which stated that 450 people had been killed in the political violence since the murder of Benazir Bhutto on 27 December 2007. On the Saturday before the election on 18 February 2008 a suicide car bomb killed over 40 people and wounded 90 more in an attack on a rally at the election office of the Pakistan People’s Party office, as reported by both the Economist (in the above article) and the CNN reported on 17 February 2008 in an article entitled Car bomb kills 40 ahead of Pakistan Vote, The tribunal is satisfied that there was an increase of political violence after the assassination of Benazir Bhutto, and that substantial amount of the violence was directed towards the Pakistan People’s Party.

38. The tribunal has considered the Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 15 January 2016 and the Thematic Report, Shias in Pakistan, 15 January 2016. The tribunal notes the department assesses that minority groups are disproportionately affected by sectarian violence in Pakistan and that Sunni militant groups including Lashkar-e-Jhanghki, although banned continue to operate illegally in Pakistan.  The Department concludes that although there has been a substantially reduced level of sectarian violence there were 276 fatalities from sectarian violence in 2015. The tribunal notes that in the Thematic Report the Department advises that Shias in their “day to day lives” face a low risk of sectarian violence, but that Shias with a leadership role in militant political organisations face a moderate risk of sectarian violence. The Department also notes that politically motivated violence occurs throughout Pakistani, but is most prevalent in Karachi.

1. The tribunal has considered the articles provided by the applicant, the source of which is not identified. The articles state that over 1200 Shias were killed in three years according to the Comments Off on Shia Genocide dated 4 July 2016. The article also states that a report from the Jinnah Institute found that between 2012 and 2015 over 1900 Shias were killed in ‘various’ violent acts. The applicant also provided an article from Comments Off dated 30 March 2016 in which it is alleged that a terrorist from the Ahle Sunnat Wal Jamat and Lashkar-e-Jhanghki confesses to involvement in a bomb blast in Lahore.

2. The tribunal has also considered other sources of country information. According to T. Kamran, published in The Political Economy of Sectarianism: Jhang on 9 May 2008 through the Pakistan Security Research Unit, the Ahle Sunnat Wal Jamat has 500 offices all 34 districts of Punjab and proximally 100,000 registered workers in Pakistan. In the article Malik Ishaq made vice president of banned ASWJ, R Mehmood in The Express Tribune on 18 September 2012, recorded that that the former head of Lashkar-e-Jhanghki had become the head of  Ahle Sunnat Wal Jamat in 2012. The South Asia Terrorism Portal in an article Sectarian Torments on 6 September 2010 (reported on that the Lashkar-e-Jhanghki and Sipah-e-Sahaba remain the principal organisations responsible for the rise of sectarian strife in Pakistan, and both have a charter which includes turning Pakistan into a Sunni state. The Human Rights Watch 2011 report Pakistan: Protect Shia Muslims dated 3 December 2011 recorded the increasing sectarian attacks on Shias since 2008 across Pakistan by alleged Sunni extremists, and the need for the Pakistani government to act urgently to protect the Shias, and that the need was greatest during the holy month of Moharram.

   Findings

3. The tribunal has considered the evidence before it and the country information available to it.  The tribunal is satisfied that the applicant is a Shia Muslim who was actively involved in the Student Federation wing of the Pakistan People’s Party from 2004 until 2012 with the exception of a period of 10 months in 2011 when he was working in [Country 2]. The tribunal is satisfied that the applicant received a threatening letter and his parents were threatened in their home. The tribunal is satisfied that ongoing threats received after the applicant left Pakistan. The tribunal is satisfied that the applicant was a person of prominence within the Student Federation wing of the Pakistan People’s Party and was also known within the party. The tribunal is satisfied that the applicant was targeted by members of the organisation known as Lashkar-e-Jhangki, and was threatened with harm due to his Shia religion and his political works with the Pakistan People’s Party.

4. The tribunal is satisfied that the applicant has a well founded fear of being persecuted for the Convention reason of his religion and his political opinion. The Tribunal is satisfied that the applicant’s religion and his political opinion is the essential and significant reason for the persecution which he fears. The tribunal is satisfied that the applicant received written statements that they would kill him if he did not desist from his political involvement, and that they would kill the Shias who had lived in his home.

5. The tribunal is satisfied that there is a real chance that the applicant will suffer persecution of a systematic and discriminatory nature if the applicant returns to Pakistan now or in the reasonably foreseeable future. The tribunal has considered the country information, and is satisfied there is a real chance the applicant will face serious harm if he returns to Pakistan now or in the reasonably foreseeable future. The tribunal is satisfied that the persecution the applicant fears is a consequence of his political opinion and his religion.

6. The tribunal is satisfied that the applicant was well known to the Lashkar-e-Jhanghki organisation prior to his departure from Pakistan. The tribunal is satisfied that the Lashkar-e-Jhanghki is powerful throughout Pakistan.  The tribunal is also satisfied Lashkar-e-Jhanghki is connected through its leader and similar goals to the Ahle Sunnat Wal Jamat, another powerful Sunni militant group in Pakistan. The tribunal is satisfied that the applicant could not safely relocate in Pakistan due to the breadth and extension of these militant groups. The tribunal is satisfied that the applicant would not be safe in Pakistan.

7. The tribunal has considered the number of sectarian violence deaths that continue to occur in Pakistan. The tribunal has considered the minimal number of prosecutions that occur. The tribunal has considered the government’s lack of ability to provide protection or safety for Shias against the sectarian violence continues. The tribunal is not satisfied that the state is able to provide adequate or effective state protection in Pakistan for the applicant.

   Conclusion

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

9. As the tribunal is satisfied that the applicant is a person who satisfies a criterion in s.36(2)(a), the tribunal has not considered the complementary protection provisions set out in s.36.(2)(aa).

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Margie Bourke
    Member