1600578 (Refugee)

[2016] AATA 4525

1600578 (Refugee) [2016] AATA 4525 (5 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600578

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Meena Sripathy

DATE:5 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 October 2016 at 3:21pm

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 [in] November 2013 and the delegate refused to grant the visas [in] March 2014. Only the first named applicant (the applicant) made claims for protection, the other applicants are the wife and children of the applicant and are included in the application as members of the same family unit of the applicant.

3. [In] December 2015 the Federal Circuit Court of Australia set aside the decision of the Tribunal and remitted the matter to the, now, Administrative Appeals Tribunal, directing it to be determined according to law.  The matter was remitted to this Tribunal on the basis that the Minister conceded the earlier Tribunal failed to consider an integer of the applicant’s claim, being that the applicant would face persecution due to his Indian ethnicity. 

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm; and if either of the above are answered in the affirmative, whether the remaining applicants are eligible for protection on the basis of being a member of the same family unit as a person who satisfies either the refugee or complementary protection criteria.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

6. The applicant is [an age] year old married man from [City], KPK, Pakistan.  His wife and [number] children, aged [ages] years, are included in the application as members of his family unit. They have not made any claim of their own in this application.  The applicant indicates in his application that he speaks, reads and writes English and Urdu.  He is Sunni Muslim.  He has [number] years of education, including attending [a named] College in [Country 1]. In addition to residing in Pakistan, he lived in [Country 1] from August 2004 to January 2005.

7. In a statement provided with his application the applicant claimed that he was from a wealthy family in Pakistan.  The family owned and operated two businesses [Business 1] and [Business 2], a [product 2 business] in Multan.  He is the [two positions] of both companies and he enjoys a luxury life in Pakistan. He lived [in the vicinity of a location]. The nearby districts where he lives are centres of paramilitary movement whose main income is derived by extorting large tolls from freight transport vehicles. Their major source of funds is kidnapping and terrorising wealthy people or organisations. They have been harassed and threatened by them for years but recently suffered two bad incidents. His [product 1] company [Business 1] was broken into in September 2011.  Around midnight some people came from the back of the workshop and held their watchman and tied them up. They brought a truck inside the workshop and took all the expensive [items] including [specific items] and other items amounting to approximately [amount] rupees worth. The applicant received some calls with blocked numbers on his mobile and home phone demanding money and threatening to kidnap him. He did not bother with these but on [a date in] April 2013 he was driving his car coming back to his home after shopping and another car with blackened windows came in front of him with no registration plates. A man entered his car, took out his gun and stuck it into his side and told him to keep driving. He was made to leave his car and get into the [car 1]. His eyes were covered and after about [number] minutes they took him to a house and took his cell phone. They then called his [Relative A] and told him they had kidnapped the applicant and demanded Rs.[full ransom amount] and gave him a two day deadline. They also threatened him not to inform the police and refrain from any similar action. His [Relative A] went to [a named] police station and reported to the [specific] police. He went to the police station again [the next day] and they wrote a report on that date. The kidnappers again called his [Relative A] and told him they knew he informed the police and his [Relative A] apologised to them. After an hour they called again and asked his [Relative A] if he had arranged the money, and his [Relative A] requested them to reduce the amount. On [the next day] at about 10 AM the kidnappers called again and demanded the same amount.  After some conversation they agreed on Rs.[a smaller amount] and gave him until [two days later]. The applicant’s [Relative A] arranged the money by selling some [property] and withdrawing money from the bank and took it to a [location] as agreed and waited in his car. At [a time] on [the agreed day] the kidnappers dropped the applicant near his house and he walked home. He was surprised to see his car at home, apparently a friend had seen it parked near the market and told him. Two months later the applicant received another phone call with a blocked number and they demanded the remaining Rs. [amount] and threatened him if he does not arrange the money they will kidnap his children, and they described the route and timing of his children’s school. He went straight to the police station on [a date in] June 2013 and wrote a report and asked for police protection. He arranged for security guards with guns and restricted his children from going to school and the whole family from going outside. Luckily he had just obtained visa for Australia for his whole family. He came first and his family followed. Under these terrible circumstances it is impossible for him to return to Pakistan because his and his family’s lives are in danger.

8. Also submitted with the application were the following documents:

   a.Report made to the [named] police station on [a date in] April 2013 by [name], the applicant’s [Relative A] relating to the kidnapping of [the applicant], and to receiving a ransom demand of Rs.[full ransom amount]

   b.Report made to the [named] police station [in] June 2013 by the applicant relating to receiving phone calls threatening to kidnap his children

   c.Copy and translation of a First Information Report made by [name], the applicant’s [Relative A] [in] September 2011 relating to theft of [specific items] from [the product 2 business]

9. The applicant was interviewed by an officer of the Department [in] March 2014. A copy of the audio recording is contained on the Department file and the Tribunal has listened to it.

10. The delegate did not accept the applicant was a credible witness on the basis of inconsistencies in his written and oral evidence relating to the kidnapping incident and when he hired the bodyguards; concerns about the delay in departing Pakistan and lodging the protection visa application and his decision to leave his children in Pakistan in light of the claimed threats against them. 

    Evidence before the previous Tribunal

11. The applicant attended a hearing before the (differently constituted) Refugee Review Tribunal [in] December 2014 and the present Tribunal has considered the evidence he provided to that Tribunal, relevant details of which are included in Tribunal file case [number] and the decision record.

12. The previous Tribunal also held concerns about the applicant’s credibility on the basis of his actions coming to Australia without his wife and children given that the claimed threats were made against his children; the delay in departing Pakistan after he received the threatening calls; and his actions when he arrived in Australia, prioritising securing employment over commencing a protection application. The Tribunal also noted inconsistencies in the applicant’s evidence about when he obtained bodyguards and references in his written statements to harassment and threats from the Taliban not mentioned by him in his oral evidence. Considering all of these concerns cumulatively, the Tribunal concluded the applicant was not a witness of truth and rejected his claims.

    Evidence before present Tribunal

13. The applicant appeared before the Tribunal on 10 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages, however the applicant elected to communicate for the most part in English.  A summary of evidence provided follows.

14. He confirmed to the Tribunal that he relies on the evidence provided earlier in his application, and indicated he had no specific new information to give. He confirmed the address provided in his application was his address in Pakistan prior to coming to Australia. He lived at this address with his family, his parents, [and specified siblings]. His parents [and siblings] continue to reside at the same address. He also has two [siblings] who reside in [Country 1], one [Relative A] in [another country], and one [relative] who lives at the family’s other residence at [Town 1] as well as another [sibling] who live separately. The applicant confirmed that his wife and [number] children, who were not present at the hearing, are relying in the application as members of his family unit only and have no claims of protection of their own.

15. The applicant confirmed his religion is Sunni Muslim he belongs to the [community].  His family migrated from India after partition moving first to Karachi and from there his immediate family came to [City], where he was born and has resided all of his life.

16. He confirmed his family still owns and operates the two businesses. His two [relatives] in Pakistan work in the family businesses as does his father. 

17. The Tribunal asked the applicant why he left Pakistan in 2013. He said that he had experienced a number of incidents. There was a robbery at the [product 2 business] in Multan. He cannot recall the date. He did not include this in his written statement because he did not have evidence about it. He was not present at the incident. The [site] was under construction and was surrounded by the fence.  About 18 or 19 people entered, the held up the guards tied up the labourers, took all the machinery and left. The incident was reported to police. Following an investigation the culprits were found selling the machinery at [a specified] Market and they managed to retrieve [a percentage] of the machinery taken. The culprits were apprehended by police and jailed. The Tribunal asked the applicant if he knew who they were. He said they were young boys who acted for monetary gain. The second incident was another robbery, this time the [product 1 business] at [Town 1]. This incident took place in the middle of the night. Again robbers held up the security guards tied up labourers and took away machinery in a truck. The applicant was not present at this incident. They reported it to the police who investigated but the culprits were never identified and no further action was taken to recover the goods.

18. After this there were a few attempted robberies at his [Relative A’s] house at [Town 1], but nothing adverse happened as his security guards were able to scare off the invaders.  There were no incidents at the applicant’s home in [City].

19. The Tribunal asked the applicant about the kidnapping incident in April 2013 referred to in his written statement. He said it was a horrible incident for him and he wishes to forget it all so his memory is not so good. He described the incident as follows.  He went out in the morning to do some shopping in the market. When asked by the Tribunal he said he can’t remember what he was shopping for. On his way home the traffic was slow and a [car 1] stopped in front of him, and a man got out and entered his car. The applicant was alone. The man put a gun to his side and told him to drive. After about 1 km or so the [car 1] pulled up and he was told to get into it. There was one driver and one person in front and another person in the back. He got into the back seat and the gunman got in next to him. They covered his eyes and drove for around [number] minutes. When his eyes were uncovered he was in a room, it had no windows, only a bed, table, chairs, and maybe a wardrobe. The Tribunal asked the applicant who these people were and what they wanted from him.  He said he could not see who they were as the man’s face was covered.  They said very little to him throughout the journey and did not tell him where they were taking him.  He only knew that they intended to kidnap him and demand money for his release.  They spoke to him in Urdu.  They did not mistreat him during the period they held him.  When he was in the room, they called his [Relative A], and demanded he pay them money. His [Relative A] eventually paid half the amount they asked for and after that, on [a later date in April], the applicant was dropped off close to his home.  He felt very relieved when he was released. He returned to work after a few days.  He wanted his life to return to normal. Things were alright after that until 2-3 months later when he received a phone call demanding that he pay money.  The callers threatened to kidnap his children if he did not cooperate.  They mentioned the name of his children’s school and indicated that they knew the road they travelled on to get there.  The applicant said before his kidnapping he had also received calls like this but he ignored them.  The Tribunal asked the applicant if he knew who made the calls.  He said he did not.  It asked what they asked for.  He said they just demanded he pay money. They did not indicate any specific amount or when or where to pay. They just asked for ‘huge amounts’. The Tribunal asked if he believed it was the same people who kidnapped him.  He said he does not know if it was because they did not identify themselves.  It asked how they knew his number.  He said it was the same number he had before his kidnapping although it was a new phone.  He confirmed that the kidnappers took his previous phone and did not return it when he was released.

20. The Tribunal noted that the FIR report submitted by his [Relative A] contained details such as the purpose of his trip to the market and the type of car that stopped him and asked how he would have known those details.  He said the details included in the police report would have been told to his [Relative A] by the vendors who were around at the time and he saw the groceries in the car so he knew the applicant was out buying these groceries.

21. When asked what he did after receiving these calls, he said he reported to the police and he stopped his children going to school.  He hired two gunmen for protection.  He continued to go to work after this, but he didn’t need to attend regularly.  He decided after receiving these calls to leave Pakistan for good for his and his family’s safety. 

22. The Tribunal asked the applicant about the timing of the hiring of bodyguards.  It noted that in his written statement and in his oral evidence to the previous and present Tribunal he said he hired them after the calls threatening his children. But when the previous Tribunal put to him that this was not consistent with his oral evidence to the delegate where he said he hired bodyguards as soon as he was released from being kidnapped, he changed his evidence and agreed it was earlier in April that he hired the bodyguards. But today again he has said it was later, after he received the calls threatening his children.  The Tribunal put to him that his changing, inconsistent evidence about this matter may cause the Tribunal to have concerns about the truthfulness and reliability of his evidence. The applicant confirmed he hired the bodyguards after he received the later phone calls.  He said he is confused and his memory is not good because it was all so awful and he wants to forget.    

23. The Tribunal put to the applicant an issue that arises relating to the timing of his arrival in Australia and that he left the country without his wife and children. The Tribunal asked the applicant why, if the threats were made against his children, he did not take them with him when he departed Pakistan. In response he said he needed some time to make some arrangements first and find accommodation and some work. His plan was to travel ahead and his family would follow in 1-2 weeks.  However, his [Relative B] then became ill and eventually died and this delayed their departure. He had arranged security guards, they were not going out of the house, also his parents were with them.  They eventually arrived in Australia in October 2013.  He referred to the incident, which he said he mentioned at the department interview and to the previous Tribunal, about his [Relative B].  He was on his way home from getting his pension payment when he was [abducted] [in] a [vehicle] and drugged.  He was robbed of his money and later found, unconscious in [City].  Some people found him and took him to hospital, where it was discovered that he was drugged.  He became ill and subsequently died.  The applicant said his [Relative B]’s abduction occurred when he was still in Pakistan, but he died after he had left the country.     

24. The Tribunal put to the applicant its concern that if threats were made to his children’s lives, why he would leave them behind given they also had visas to travel to Australia.  It put to him it may not accept his explanation that he wanted to come first and find somewhere to live and settle before they came, given he and the family had travelled to Australia previously, and had come together.  In response the applicant said that this time was different to the previous time because that was only a visit and this was to stay.  The Tribunal pointed out that he was granted the visa in June 2013 but didn’t arrive here until August 2013 and this delay and coming without the children may cause the Tribunal some concerns about the genuineness of his fear in Pakistan.  He said that he did what he thought was the right thing to do at the time. 

25. The Tribunal also raised with the applicant the issue of the delay between his arrival and making the application for protection. He said he didn’t want to cause any problem for his wife and children coming here, he was concerned that Immigration may cancel their visas to come here if he lodged the application.  He sought advice and was told that he could apply earlier, but there is a chance it could cause problems for his family’s arrival so he could just wait until they arrive and then apply as he had a three month visa.  His explanation for not applying earlier was because family was not here yet.

26. The Tribunal noted that while he mentioned the incident relating to [Relative B] at interview, he did not mention that this occurred while he was in Pakistan.  His failure to mention this important fact, and the way in which this story has come out, may lead the Tribunal to conclude he is fabricating his claims along the way. Also apart from his oral assertions, he has provided no other evidence about his [Relative B’s] death.  He has not provided any evidence indicating the date of his death or how he died, and the Tribunal may not accept his claims relating to his [Relative B’s] abduction and death. The applicant agreed that he did not mention the incident with his [Relative B] in his written application because it was not related to his kidnapping directly and it did not happen to him so he did not think it was relevant. 

1. The Tribunal asked the applicant what he is afraid of if he returned now to Pakistan.  He said he is afraid the same things that happened in the past could happen again.  He doesn’t want to live in fear and stress.  He fears kidnapping and robberies.  The Tribunal put to him that his parents and siblings continue to live in Pakistan and continue to work and operate their business and he has told the Tribunal none of them have experienced any incidents of harm in the past or since he has been in Australia.  The applicant agreed that this was the case.   It put to him that while it accepts that incidents of kidnapping and robbery do occur in Pakistan, even if the Tribunal accepts his claims regarding past incidents, it may not accept that his fear of future harm is for a convention based reason rather than as a random criminal act.

2. The Tribunal discussed with the applicant independent country information about the improved security situation in Pakistan in recent years and significant reduction in killings, abductions and terrorist and sectarian attacks and on the basis of this information the Tribunal may not be satisfied there is a real chance or real risk of serious or significant harm in future and asked for his comment on this.  The applicant said he does not know what is happening in Pakistan in recent years and has not discussed this with his family. He agreed that they have not told him about any incidents that have happened to them recently.

3. The Tribunal asked the applicant about the reference in his statement to the Taliban and activities of Taliban in his area, and that he made specific reference in his written statement to his family having issues with the Taliban, however he has not specifically referred to them in his account to the previous Tribunal or today.  It asked if he has any fear of harm on this basis or on the basis of his ethnicity, noting also the reference in his written statement that he is from a Punjabi speaking family and they are ethnically Indian. The applicant indicated his fears of harm are for the reasons he has explained. The Tribunal put to him in the evidence he has given throughout the application and review process he has not mentioned any identification of individuals or groups specifically related to Taliban or any other group.  The applicant confirmed he does not know for sure whether they are Taliban or Punjabi or just criminals.  He confirmed he is afraid generally of kidnappings and robberies in future.    

4. The Tribunal asked the applicant why it would not be reasonable for him to relocate in Pakistan. He said he would feel insecure in any place in Pakistan.  He is afraid of the Taliban or these kinds of people. He did not indicate any other reason it is not reasonable for him to live elsewhere in Pakistan.

   Independent information

5. The 2016 DFAT Country Report for Pakistan states the following in relation to the security situation:

   2.28 Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access tosafe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come. However, DFAT understands that militant sleeper cells remain in many urban centres and continue to target state and civilian infrastructure. The rugged terrain and porous borders in Pakistan’s tribal areas and between Pakistan and Afghanistan present ongoing challenges for maintaining security and enforcing the state’s writ.
   …

   2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted these areas (see ‘Militant Groups’ below).

   2.31 Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e-Azb, which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan.[1]

   [1] DFAT Country Report Pakistan 16 January 2016, pp6-7

6. Other sources also confirm that the overall security situation has improved.  For example, the UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation[2] reports that the Austrian fact Finding Mission to Pakistan undertaken in July 2015 found an overall improved security situation since its previous mission in 2013. The 2014 report of the Pakistani Institute for Peace Studies (PIPS), indicated a 30% decrease in the number of terrorist attacks carried out by militant, nationalist/insurgent and violent sectarian groups in Pakistan in 2014 compared to 2013.[3]

   [2] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015

   [3] European Asylum Support Office,  Country of Origin Information Report Pakistan Country Overview, at p53 citing PIPS, 2014, Pakistan Security Report, 2015, p. 7.

7. As many as 436 of the total reported terrorist attacks (about 36%) exclusively targeted personnel, convoys and check-posts of security forces and law enforcement agencies. Civilians were the apparent targets of 217 attacks (18%). A total of 157 attacks (13%) had sectarian targets, mainly members of the Shia and Sunni communities and worship places including mosques and shrines. Another 66 terrorist attacks targeted pro-government tribesmen, members of tribal peace committees and lashkars, 56 attacks were aimed at political leaders and workers while 40 targeted educational institutions, mainly schools. Other targets hit by terrorists during the previous year included state installations such as gas pipelines, power pylons and railways (a total of 121 attacks), polio health workers (24 attacks), NATO supply vehicles (22 attacks), government officials (11 attacks), journalists and media (11 attacks) and minority communities (8 attacks). Officials of the political administration in the FATA, tribal elders, non-Baloch settlers/workers in Balochistan, members of NGOs and civil society, private property, alleged spies and foreign interests/diplomats etc. were also targeted by terrorists in different parts of the country in 2014.[4]

   [4] European Asylum Support Office,  Country of Origin Information Report Pakistan Country Overview p53

8. The UK Home Office Report provided the following information about security incidents in 2015:

   5.3.9 On 17 February, a suicide attack at the police headquarters in Lahore killed
   6 people, including 4 civilians and a police officer. On 15 March, at least 14
   people were killed in bombings targeting 2 churches in Lahore. A further 70
   were wounded. The SATP provided data on major incidents of terrorismrelated
   violence for 2015. From 1 January 2015 until 20 September 2015,
   they noted 2,466 fatalities.

   5.3.10 On 29 July 2015, Malik Ishaq, leader of the banned militant group, Lashkare-
   Jhangvi (LeJ), was killed in gunfight that occurred in Punjab province after
   his supporters allegedly attacked a police convoy in an attempt to free him.
   Ishaq’s two sons, his deputy and 11 militants were also killed. There was
   speculation that Ishaq was killed in a police “encounter”, whereby shoot-outs
   are staged to eliminate suspects.  In an apparent response to the killing of
   

   [5] UK Home Office Country Information and Guidance Pakistan: Security and Humanitarian situation, November 2015, p13

   the LeJ leader, Punjab Home Minister, Shuja Khanzada, was killed in a suicide attack on 16 August. Sixteen others were also killed in the blast.[5]

9. As of September 2015 there had been a 70 per cent reduction in the number of terrorist attacks compared with the same period last year and, according to the South Asia Terrorism Portal, an almost 50 per cent reduction in the number of terrorism related fatalities.[6] Arif Rafiq has noted that if the trend continued ‘the number of Pakistani civilians killed in terrorist attacks this year will be the lowest since 2006’, ie., before the emergence of the TTP in Pakistan. While the number of people killed in sectarian attacks has increased in 2015 from 2014, Rafiq points out that the number of attacks has in fact halved, with ‘two gruesome massacres’ responsible for the high fatality rate. Rafiq attributes the decline in the number of attacks to, among other things, the country wide implementation of the NAP.[7]

   [6] Craig, T 2015, ‘In Pakistan, a prime minister and a country rebound — at least for now’, The Washington Post , 08 September <

   [7] Rafiq, A 2015, ‘Operation Karachi: Pakistan's Military Retakes the City’, The National Interest, 24 August <

10. In respect of Khyber-Pakhtunkhwa specifically, there were 325 terrorist attacks in 2014, compared to 499 in 2013. TTP or associated groups carried out 308 of the 325 terrorist attacks, while 17 attacks were sectarian and mostly perpetrated by TTP and Lashkar-e-Jhangvi. Peshawar was the most affected part of the province, just like in 2013. These terrorist attacks targeted civilians, security forces, educational institutions (such as the Peshawar army school), health workers, the Shia religious community, political leaders/workers, tribesmen, power installations, government officials and buildings, Sikh community, places of worship, CD shops etc.[8]  The South Asian Terrorism Portal Khyber-Pakhtunkhwa Assessment 2015 also indicates that KP recorded a continuous decline in fatalities since 2010, with the exception of 2013, though it notes the December 2014 attack on the army school in Peshawar as one of the worst and most barbaric acts of terror, and and an indication that stability and state control remain as elusive as they were in previous years.[9]

    [8] European Asylum Support Office,  Country of Origin Information Report Pakistan Country Overview , p61.

    [9] AND REASONS

11. A summary of the relevant law is set out at Attachment A. 

    Nationality

12. On the basis of the evidence of the applicant’s passport the Tribunal finds that he is a citizen of Pakistan and Pakistan is his country of nationality for the purposes of this assessment of protection obligations.

    Consideration of applicant’s claims

13. In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s file, including his application for the Protection visa, the documents he provided to support his claims, and his evidence to the delegate at interview; the previous Tribunal file including written and oral evidence he gave to that Tribunal and the oral evidence provided to the present Tribunal.  It has also had regard to independent information regarding current security conditions in Pakistan, the details of which are discussed further below.   

14. The applicant claims his businesses in Pakistan have experienced robberies in the past.  He claims he was kidnapped in April 2013 and a ransom was paid for his release.  After this he claims he received phone calls demanding he pay more money or his children would be kidnapped.  The applicant fears returning to Pakistan because his and his family’s lives would be in danger of kidnapping and extortion for money. 

15. On the oral evidence and documents before the Tribunal it accepts the following about the applicant’s background and circumstances.  It accepts that he is a Sunni Muslim and a businessman. He has parents and [specified siblings] who reside in Pakistan. It accepts that his family own and operate two businesses, [Business 1] and [Business 2], and that he was working in these family owned businesses prior to coming to Australia. It accepts that his father and [Relative A] continue to work in the family business to date, and continue to live in the family residences in [city] and [Town 1].  It accepts, on the basis of his oral evidence and department records that the applicant has travelled to Australia on three previous occasions, in for two weeks in December  2011, over three months from April – July 2012 (with his family unit) and almost three months from November 2012 to February 2013. 

16. In relation to the applicant’s claims relating to past incidents in Pakistan that led him to depart the country and seek protection, the Tribunal makes the following findings.  In his written application, he referred to an incident in September 2011 in which the [product 1 business] in [Town 1] was robbed late at night, and provided a police report made relating to this incident.  The oral, written and documentary evidence about this claim indicate that the perpetrators of the robbery were unknown persons, and no one was held responsible for the incident, despite reporting it to police. In his oral evidence to the previous and present Tribunal the applicant also mentioned a prior robbery incident involving the [product 2 business] in Multan.  In respect of this incident he said he had no documentary evidence and that is why he did not include it in his written application. His oral evidence was consistent about this matter, indicating that the machinery was eventually found and returned and the culprits arrested and charged. In respect of both of these robberies the applicant has consistently said they were criminal acts and he is not aware of any connection between the perpetrators and any known terrorist or other groups.  The applicant also referred in his oral evidence to attempted break-ins at his [Relative A’s] house in [Town 1] but again made no claims that the robbers were known to them or connected to any particular group. 

17. In light of the consistency in his evidence about these matters, and independent information about crime and violence in Pakistan, particularly in this period, the Tribunal is prepared to accept as plausible and possible that the applicant’s [businesses] were robbed as claimed in the past, and that his [Relative A] experienced attempted robberies at his home. However it does not accept, and the applicant has not claimed, that any of these past incidents of robbery or attempted robbery targeted the applicant, his family or companies or were connected in any way to a terrorist, sectarian or other specific group.  

18. The Tribunal is prepared to accept, as possible and plausible the applicant’s claim that he was kidnapped in April 2013, and a ransom paid for his release.  It accepts that this claim is consistent with independent information indicating that kidnapping for ransom was a common enterprise throughout Pakistan particularly in the period in question.[10] He has provided a reasonably detailed and consistent account of this incident.  His own evidence is that he does not know the identity of the people who kidnapped him, and has no knowledge if they are affiliated with the Taliban or any other terrorist or extremist group.  Having regard to all of the above, the Tribunal is prepared to accept that the applicant was kidnapped as claimed in April 2013, and that his family paid an amount as ransom for his release.  It finds, on the evidence before it, that the motive for the kidnapping was money and that it was a random, criminal act.  

    [10] See for example, Abbas, H 2013, ‘The Political Landscape of the Taliban Insurgency in Pakistan’, in P Bergen and K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.262-288. p.270; The Human Rights Commission of Pakistan (HRCP) reported that in 2009 there were 592 cases of kidnapping for ransom in Khyber-Pakhtunkhwa (NWFP), 241 in Balochistan, 244 in Punjab, and 163 in Sindh: US Department of State 2011, Country Reports on Human Rights Practices 2010 – Pakistan, 8 April, Section 1.C-

19. However the Tribunal has significant concerns about the applicant’s further claims that some two months later in June 2013 he received calls demanding money from him and threats were made against his children.  For the following reasons the Tribunal rejects these claims as lacking in credibility.  Firstly his evidence about the timing of when he obtained bodyguards has been inconsistent. He referred in his written statement and in his oral evidence to the previous and present Tribunal to obtaining the bodyguards after he received the calls threatening to harm his family if he did not pay the additional Rs [amount] in June 2013. However, he told the delegate at interview that he arranged for bodyguards as soon as he was released after he was kidnapped in April 2013.  When the inconsistency was put to him by the previous Tribunal he claimed the correct information was that he obtained the bodyguards in April 2013 and not in June as he originally said.  However, in his hearing before the present Tribunal in May 2016 he again said that he hired the bodyguards after he received the calls threatening his family in June 2013.  When the changing and inconsistent evidence about this matter was put to him for his comment, he said his memory was not good and he gets confused, but confirmed that the correct information is that he hired the bodyguards in June 2013. 

20. The Tribunal has considered his explanation and the inconsistencies in his evidence. If this were the only problem with his evidence the Tribunal may accept that the fact he has retold the story on numerous occasions to different people and the passage of time may reasonably explain the discrepancy.  However, taken together with its other concerns, the Tribunal does not accept these reasons for the inconsistency in what it considers to be a material aspect of his claim. 

21. The second concern the Tribunal has is that the applicant left Pakistan after the alleged threats, without his wife and children, when they all had visas to depart.  If the applicant’s children’s lives were threatened in June 2013 as claimed, and they had visas to travel to Australia together, the Tribunal has difficulty accepting as plausible or credible that he would leave them behind and travel here alone.  This matter was discussed with the applicant by the previous and the present Tribunal and it has considered his responses and explanations provided, but it does not find them convincing or credible. The applicant explained that he wanted to come first and make arrangements for his family by way of accommodation and employment for himself.  He also said that the initial plan was for them to join him in 1-2 weeks but this changed only because his [Relative B] became ill and then died and so they had to stay back for that reason.  He explained that the family stayed with his parents and hardly left the house and he had arranged bodyguards so he was confident for their safety.  Against these explanations the Tribunal observes that the applicant had travelled to Australia previously with his whole family altogether and did not need to come early to make arrangements for them that time. The fact that they had all been in Australia together previously detracts from his argument that he needed to arrive early to make arrangements for them, as it was not the first time they were coming to Australia and they clearly had contacts and familiarity with the country. The Tribunal also considers the applicant has been vague and non specific about his [Relative B’s] illness and date and cause of his death, and has not provided any other evidence to support this explanation.  As referred above his evidence about the timing of obtaining the bodyguards is inconsistent causing the Tribunal to have doubts about the truthfulness and reliability of this matter.  The Tribunal also rejects as lacking in credibility the applicant’s claim about his [Relative B] being abducted and drugged. It notes that he made no mention of this in his written claims and if true the Tribunal considers it is too significant to have been omitted. It also finds that if true, it is even less likely the applicant would have left behind his wife and children in Pakistan when he departed. For all of these reasons it does not accept the explanations provided by the applicant for why he did not bring his wife and children with him, and the Tribunal considers his conduct in doing so is inconsistent with his claimed fear for his and their safety and undermines the credibility of his claim regarding the threats. 

1. The Tribunal is also concerned about the time it took him to depart Pakistan after the claimed threats were received in June 2013, given that he had a visa by that time and could have left much sooner.  It finds the fact that he did not depart until mid August is also not consistent with his claimed fear for his life and safety and also undermines the credibility of his claim regarding the threats made in June 2013.

2. The Tribunal has considered the FIR document the applicant has provided in support of his claim relating to the threats made in June 2013, but ultimately it gives this document limited weight and it does not overcome the Tribunal’s other significant concerns regarding this claim. He also provided FIR documents in support of his claim about the robbery at his [product 1 business] in [Town 1] in September 2011 and his kidnapping in April 2013 and the Tribunal discussed with the applicant during the hearing its concern that the FIR purportedly made by his [Relative A] in April 2013 appeared to contain more detail than he could have had personal knowledge of, raising concerns about its authenticity.  In determining the weight it gives these documents, the Tribunal takes into consideration independent information before it which suggests document fraud is endemic in Pakistan and it is relatively simple to fraudulently produce police issued FIRs using existing FIR book numbers.[11] 

   [11] DFAT Country Information Report Pakistan 15 January 2016, paragraphs 5.46 and 5.47, page 24

3. All of the above concerns considered cumulatively lead the Tribunal to doubt the credibility of the applicant’s claims about the demands for money and threats made against him and his family in June 2013 and it doubts whether this is the true reason he left Pakistan in August 2013. 

4. The Tribunal has considered the applicant’s claimed fear of the Taliban referred to in his written claims. He was questioned about this at some length by the previous Tribunal and again specifically by this Tribunal.  On both occasions the applicant confirmed that he has never specifically identified any individual or group involved in any of the robberies, kidnapping or threats made against him, and that he has no actual knowledge that the Taliban was involved.  On this basis the Tribunal finds there is no evidence before it to support the involvement of the Taliban or any other specific extremist group in any harm against the applicant or his family in the past.  On the evidence before it, the Tribunal finds that no member of the applicant’s family in Pakistan has experienced any incidents of harm or crime since the applicant has been in Australia.   

5. The applicant has also made no claim of past harm or fear of harm on the basis of belonging to a Punjabi or Urdu language group or his Indian ethnicity, despite the reference to these background characteristics in his written claims, and the Tribunal finds that neither he nor his family have experienced harm in the past on the basis of their language or ethnic background. 

   Is there a real chance the applicant will suffer serious or significant harm in the reasonably foreseeable future

6. Having made the above findings in relation to the applicant’s background, profile and past experiences in Pakistan, the Tribunal will now consider whether there is a real chance the applicant will face serious harm in future. Specifically, the Tribunal has considered whether the applicant faces a real chance of serious harm in the form of being kidnapped, subject to extortion threats, or physically harmed for reasons of his membership of a particular social group as a person of middle class background or as a businessman, or for reasons of his Indian ethnicity or Punjabi/Urdu language background, or for any other Convention reason.

7. In its findings above the Tribunal accepts that the applicant is from a prominent business owning family in [city]; that his family’s [businesses] have been robbed in the past; and that he was a victim of a random criminal kidnapping for ransom. It has found, however, there is no evidence that any of these incidents were attributable to the Taliban or any other known group and it has rejected his claim that he faced further demands for payment of money and threats against his family prior to coming to Australia. 

8. A ‘well founded fear’ (for the purposes of the refugee criteria) involves both a subjective and objective element. That is, the Tribunal must be satisfied that the applicant has a genuine fear of being persecuted and that there is a real chance of that persecution occurring. 

9. With regard to the applicant’s subjective fear, the Tribunal observes that he travelled to Australia some 2 months after his visa was granted, he did not bring his immediate family with him despite having visas for them to travel, and he did not lodge his application for protection immediately upon arrival in Australia, but rather waited some months.  Taking into consideration his explanations for these matters, even if the Tribunal were prepared to accept as reasonable his explanation for the delay in lodgement of the protection application, considered cumulatively, it finds his conduct in not leaving sooner and not bringing his family with him is not consistent with him holding a genuine subjective fear of harm. 

10. In any event, a well founded fear requires also an objective basis to the fear that the applicant would suffer persecution upon return in the foreseeable future.  For the following reasons the Tribunal is not satisfied there is an objective basis for the applicant’s fear of persecution on return. 

11. The applicant fears harm from the Taliban and other such groups because of what he claimed happened to him in the past and as a businessman.  However the Tribunal has found that the robberies of his [businesses] and incident of kidnapping it accepts happened to him in the past were not targeted at him or his family or business specifically, but rather were random criminal acts. Since then, no one in his family in Pakistan has experienced any other criminal or security incident.  His father and [Relative A] have continued to run the businesses, they continue to live at the same addresses, and they have not reported having experienced any harm or security incidents in the period he has been in Australia. This indicates that the family, or their family business, is not targeted for harm from the Taliban or any other extremist or criminal group.  This, together with independent information referred to above (and discussed in the following paragraph) regarding the improved security situation and significant reduction in crime and violence throughout Pakistan since the commencement of operation Zarb-e-Azb, leads the Tribunal to conclude that it not satisfied the applicant faces a real chance of serious harm in future on the basis of his membership of a particular social group as a businessman, businessman vulnerable to extortion, or middle class person more generally. 

12. The Tribunal has also considered as a separate claim arising from the material before it, whether there is a real chance or real risk of serious or significant harm to the applicant from generalised violence in Pakistan.  To this end, the Tribunal accepts that Pakistan has for some time, and continues, to face security threats from terrorist, militant and sectarian groups and that people at large may feel a sense of insecurity as a result of incidents of terrorist, sectarian, criminal and other violence.  However, a number of sources confirm that the overall security situation in Pakistan, including in Khyber Paktunkhwa, has significantly improved in recent years, particularly since the commencement of counter-terrorism military operations around the country since 2014 which has been responsible for a substantial reduction in the number of sectarian and terrorist attacks and generalised violence throughout the country. The most recent information from DFAT indicates there has been a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015; that militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted. Notwithstanding this, the Tribunal also accepts that, despite this overall downward trend in violence, there have been a number of significant security incidents in 2015 and 2016.[12]  The targets of the majority of these attacks, however, appear to be security forces, law enforcement, members of sectarian groups and/or minority communities and other specifically targeted groups none of which the applicant appears to come within.  The Tribunal has considered the applicant’s response when this independent information was discussed with him at hearing, that he has not been following recent events in Pakistan but he continues to be afraid generally of kidnappings and robberies in future.  On the material before it, the Tribunal finds that to the extent that the applicant faces a risk of serious harm from generalised violence as a civilian victim of violence or crime, such harm would not be directed at him for a Convention based reason and therefore would not fall within the refugee criteria.  

    [12] Eg. 22 Shias killed and 50 injured at an Imambargah in Hayatabad, Peshawar in February 2015: .   Lahore attack: Pakistan 'detains 200' after Easter blast, BBC News , 29 March 2016 >

    Having regard to the claims and evidence before it relating to the applicant’s Punjabi/Urdu language and Indian ethnic background, the Tribunal has found above that the applicant has not experienced past harm from the Taliban or any other extremist or criminal group for these reasons and given that he did not articulate a claim of fear of harm in future on this basis when specifically asked about this at hearing, the Tribunal is not satisfied that the applicant faces a real chance of serious harm in future for reasons of his language or Indian ethnic background.   

13. Having considered the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution for reasons of his membership of a particular social group as a businessman vulnerable to extortion, or member of the middle class, or for reasons of his Punjabi or Urdu language or Indian ethnic background, or for any other Convention based reason.  Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention now or in the reasonably foreseeable future.

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary Protection criteria

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act.

16. Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Pakistan and his claims of fear of future harm, for the same reasons the Tribunal was not satisfied there was a real chance of serious harm, the Tribunal is also not satisfied that there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Pakistan.

17. In addition to the applicant’s oral and written evidence, the Tribunal has carefully considered independent evidence regarding security and violence in Pakistan generally. As referred to above, the Tribunal accepts that Pakistan has for some time, and continues to, face security threats from terrorist, militant and sectarian groups and that people at large feel a sense of insecurity as a result of incidents of terrorist and sectarian violence.  However, as also indicated above, various sources confirm that the overall security situation has significantly improved in recent years, and there has been a substantial reduction in the number of sectarian and terrorist attacks and generalised violence throughout the country.  The Tribunal has also observed that despite the overall downward trend in violence there have been a number of significant security incidents in 2015 and 2016.  Having regard to this information, in respect of his fear of harm from generalised violence, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.

18. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

20. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

22. 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

23. 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).

24. 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.

25. 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.

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

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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

33. 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’).

34. ‘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.

1. 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

2. 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.

   Member of the same family unit

3. 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 partner and children.