1603699 (Refugee)

1603699 (Refugee) [2019] AATA 5902 (21 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603699
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Tania Flood
DATE:21 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 May 2019 at 2:01pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – member of party Muttahida Qaumi Movement (MQM) – race – Urdu-speaking Mohajir – family members imprisoned and tortured – raids by law enforcement agencies – association with criminal elements in political party – fear of retribution – low-level membership and activity – delay in leaving Pakistan after obtaining visa – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 10 June 2015. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Pakistan for the reasons claimed.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Pakistan for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively 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 he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
In his application form for a protection visa, the applicant made the following claims:
He is a citizen of Pakistan and was a member of a political party, Muttahida Qaumi Movement (MQM). He fears persecution in Pakistan because of his involvement with this organisation. [A number] of his uncles have already been killed. His father was tortured and imprisoned by authorities for no reason other than his brother-in-law was a member of MQM. This is despite his father being a former [government employee].
He claims that Urdu speaking people are discriminated against in Pakistan. He joined MQM while he was at University, because he believed it was a movement for the rights of Urdu speaking people who migrated to Pakistan from India. He was a part of the student branch of MQM called APMSO and performed political duties for the Party.
He wanted to leave MQM after he realised it was associated with the Mafia and because of the criminal acts perpetrated by members of the group, who obtained money and property from innocent people. He feared he would be harmed and killed by the MQM for leaving the party. He moved to a farm house on the highway to evade the MQM. However, he was not able to leave to go shopping or to see his family.
He cannot move to another part of Pakistan because as an Urdu speaker, he is not considered to be Pakistani. He is perceived as an Indian agent and will be reported to the authorities.
He claims that he cannot return to Pakistan as MQM is looking for him. He believes he is being targeted because he knows their secrets.
He fears that he will also be tortured or killed by law enforcement agencies in Pakistan, because Urdu speakers were always against agencies, army and police in Pakistan. He claims that the authorities undertake extra judicial killings of Urdu speaking people who have been a part of MQM.
On 18 March 2018, (CHECK 2016) the applicant provided a further statement, attached to his application for review. The statement repeats the key claims by the applicant in his protection visa application. He also makes the following additional claims:
·It is not possible for anybody who is labelled as an Urdu speaker or MQM worker to get a job in Pakistan. His father was suspended after 2007 when the MQM was not in power. Until now his father is living a low life.
·He claims to have been ‘brainwashed’ while serving in the APMSO. He believes the MQM sacrifices members’ lives for political motivations. He was forced to collect extortions from businessmen, and forced businesses to close to ensure MQM strikes would be successful. He also made speeches against law enforcement agencies. He felt ashamed about his acts, but complied with MQM orders due to fear.
·Two of his family members joined MQM-H and were involved in killing MQM workers. They themselves were later killed by MQM.
·The situation improved after the former President Pervaiz Musharaf gave more power to MQM. However, after he resigned, the problems returned.
·Agencies in Pakistan brutally killed MQM members for their criminal acts, without charging them or bringing them to court. They killed innocent workers who were forced to do criminal activities like he himself was.
·He was attacked by APMSO members because they thought he was giving information to agencies which led to the arrest of other AMPSO members.
·A fellow MQM worker, [Mr A], encouraged the applicant to leave Pakistan. He helped the applicant to get a passport and apply for a student visa. A corrupt boarding officer helped him at the airport.
·He claims be will be arrested and tortured if he returns to Pakistan. He also faces complaints from the business owners, from whom he collected extortion money.
·Two of his relatives are in custody in Pakistan. His father was asked by agencies a few months ago where his son is and his father told them he is in Australia.
In the same statement, the applicant responded to comments made by the delegate:
·As to his involvement in criminal and violent activities, the applicant claims he was forced to comply with the orders of MQM, otherwise they would turn against him.
·As to his attendance at [University] until December 2013, the applicant claims that he was attacked by APMSO workers in the gap between finishing his classes and completing exams.
·As to the fact that the applicant has no evidence of his involvement with MQM or the APMSO in December 2012, he stated he will provide contact details of MQM members to contact for more information.
·As to the fact he had ceased involvement in the MQM or APMSO in December 2012, he states he was nervous at the interview and made a mistake; he left MQM in 2013.
·As to his part time work, the applicant states that as his family was in financial crisis, he had to work part time for fellow member, [Mr A], who later left the country.
·As to how he was able to obtain a student visa, the applicant states that he had the help of an agent who managed to help him apply for a passport and visa without a police check.
·As to the fact that he was never charged, detained, questioned or arrested by Pakistan authorities, the applicant claims that the agencies never raided his house, because he was ‘underground’. However, they did raid his workplace and his University, and his companions were arrested. He was unable to participate in education, and avoided law enforcement agencies.
·As to his father’s occupation, the applicant confirms that his father [worked for the government] for 20 years and worked for [an international organisation]. However, in 1992 when the operation against MQM started, he was detained and tortured, despite being [a government employee]. In 1997, he took the applicant to [Country 1] and other European countries in the course of work. The applicant claims his father returned to Pakistan as he did not want to live in any other country.
·As to the applicant’s travel history, he confirms that he had travelled overseas in the past as his father was [working for an international organisation]. His family had never applied for protection in any of those countries because they were happy living in Pakistan and this was before the threats arose in the country.
·As to how he was able to obtain a passport, the applicant states that he paid an agent to assist him.
On 5 March 2019, the following documents were received in support of his review:
·Four photographs from a newspaper article, depicting the funeral and bodies of MQM members, including the applicant’s uncle.
·An article, dated [August] 2016, on protests by MQM members against extra-judicial killings of workers.
·An article, dated [March] 2016, “FIA asks Kamal to help confirm MQM-Raw links”.
·Nine photographs extracted from various news articles and websites, showing the treatment of people in custody, and the bodies of deceased MQM members.
·A photograph of the applicant’s family, with MQM co-founder Azeed Ahmed Tariq. The applicant states that both Azeed and his Uncle had been killed.
·A photograph of the applicant’s mother in hospital. The applicant claims she is ill but he cannot go back to Pakistan to see her.
·Ten clippings of newspaper headings about the treatment of MQM workers in Pakistan.
·Statutory Declaration by the applicant’s partner, [Ms B], dated 8 January 2019. She claims that she has been in a relationship with the applicant since March 2018 and intends to marry him. She claims it is not safe for the applicant to return to Pakistan as he is at risk of being tortured by law enforcement agencies or by other political groups in Pakistan.
·A clipping from a news article on a raid by Rangers of MQM’s Unit In Charge in [Suburb 1], the sector office he worked for. The applicant claims that he was fortunate not to have been harmed by law enforcement agencies in the past. However, his father was questioned and his brother was taken into custody.
·A letter from an Organiser of the MQM Australian unit, [Mr C], dated [December] 2018. This confirms that the applicant belongs to a family serving MQM since the movement started. He claims that the applicant worked for the student organisation of MQM, and that his life is in danger.
·A statement by the applicant (undated), on how he discovered and became a member of the MQM institution in Australia.
·A photograph of the applicant’s brother after his release from custody. He sustained injuries at hands of the authorities.
·A Statutory Declaration by the applicant dated 14 February 2019. The applicant repeats his previous claims about how he became involved with MQM and how he left Pakistan. The applicant also provides the following new information in relation to his review:
o[In] December 2015, his family’s home was raided by plain-clothed Pakistani intelligence officers. His family was questioned about his affiliation with MQM and the officers indicated that they had discovered documents and photos at the [Suburb 1] sector office indicating he was ‘anti-Pakistan’.
oWhen his home was raided, his father had to distance himself from him to protect the rest of the family and he told the authorities that he had worked for MQM against his wishes. For this reason, he fears he will be subject to interrogation and taken into custody and tortured if he returns to Pakistan.
oHis younger brother was taken into custody for 5 months and badly beaten. He was released on the condition that he works for PSP, a party created by the establishment.
oHis background involves working for a political party that has been considered a national security threat. He was not involved in such activities but the intelligence agencies are harsh on groups which they see as a threat to Pakistani nationalism and especially where Indian agencies are involved.
oHe claims he made mistakes during his Department interview due to anxiety. He quit MQM in December 2013, not in 2012. He left the University right after and could not finish his studies.
oThere was delay in making his Protection application because he was not aware of his legal options.
oIt was difficult for him to get evidence of his involvement with MQM and APMSO as MQM offices in Pakistan have now closed and documents were destroyed by Pakistani agencies.
oHe provides recent country information to support his claim that MQM is considered a ‘national security threat’. His association with them makes him a target of Pakistani Intelligence agencies.
oHe was able to leave Pakistan because he paid some money to a boarding agent to help him avoid FIA officers who were questioning people. He was taken through a different door.
oHe avoided arrest in Pakistan because his family suggested very early on that he stop going to University and to avoid going to places related to MQM. At that time the operation against MQM was in the early stages. They raided the sector office where he worked after he had arrived in Australia. He was not living at home during this time; he was staying with a friend while he worked at the hotel.
oHe cannot relocate to other areas because the law enforcement agencies target MQM members across Pakistan. Relocation also requires police checks and background checks which would alert authorities and lead to him being harmed or killed by political parties and intelligence agencies.
oHe holds a Karachi ID which means he would not be eligible for any job or university enrolment or have voting rights in other areas of Pakistan. His uncles tried to move to Punjab, but they failed to get a job because they could not speak the Punjabi language and couldn’t make connections. They moved back to Karachi but were killed before they could leave Pakistan.
oHe is still in contact with very senior MQM members who are located in [Country 2] and [Country 3]. He has also visited some members in Sydney.
Tribunal hearing
The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments in support of his claims. A summary of the oral evidence provided by the applicant to the Tribunal is set out below:
·He is from Karachi, Pakistan. He is a Mohajir and a Sunni Muslim although he is not a religious person.
·He speaks English and Urdu.
·Prior to departing Pakistan he lived with his parents in [Suburb 1] in Karachi however from March 2014 onwards he concealed his whereabouts by staying in a hotel for a while, with friends and relatives and in student accommodation.
·His parents and siblings remain living in [Suburb 1]. His father was [a government employee]; his brother finished college but is not working.
·His mother lost [a number of] brothers to political violence and most of her remaining family have been living in [Country 4] since 1992. His father’s family are not involved in politics.
·He arrived in Australia in December 2014 on a student visa. He did not study because his family’s savings were not sufficient to support him.
·He departed Pakistan on a genuine passport which he obtained through an agent [in] April 2014. The reason for delaying his departure from Pakistan is due to the length of time it took to obtain the student visa.
·He commenced a University degree in 2013 and attended classes for a while. When the crackdown against MQM started and fellow students started disappearing his family advised him to stay away from the University. He stopped attending University around the end of 2013. He said that exams were scheduled for January and February 2014 and he made an attempt to attend however, he saw some MQM people acting quite aggressively and he left. He thinks it is possible they thought he might have been providing information about them to law enforcement officials.
·In Pakistan he worked for a short while for a friend at a [workplace]. In Australia he is working as [an Occupation 1].
·He departed Pakistan because the operation against MQM was gaining momentum. Since his departure his sector office was raided and [number] people were arrested. The office was raided again in 2016.
·He fears harm from intelligence officers as well as mafia elements in MQM. Regarding the latter, he knows where their members are located and he knows about their past criminal activities. If he returns to Pakistan and is detained by the authorities they may think he will inform on them.
·He and his mother’s family support the Altaf Hussain faction of MQM. His mother’s family is very well known for their MQM support. Various uncles were killed in the 1990’s. Even though most of his mother’s remaining family have left Pakistan they still provide support from abroad. Two of his mother’s cousins were taken into custody sometime in 2015 or 2016.
·He joined the student wing, APSMO in 2011 and in 2013 he started working for [Suburb 1] sector. In the student wing he organised events, controlled the area and kept abreast of their competitors.
·He never formally resigned from MQM; rather on his family’s advice he tried to stay away from the movement due to the criminal activity which they engaged in. While he does not agree with the criminal behaviour he remains a supporter of MQM’s ideology. He has been away from Pakistan for 5 years and given how MQM is currently portrayed he doubts he would support them in Pakistan if he returned.
·He was not personally involved in any criminal activity but he was being pushed to do so. He found ways to avoid being involved but sometimes he had to accompany them otherwise he would be viewed suspiciously. He was only [age] at the time and just tagged along in order to not attract attention to himself.
·While he encountered some aggression at the University when he went to sit his exam he was not otherwise harmed by the MQM and he managed to evade the authorities. The operation against the MQM was only just starting and at that time they had no information about him because his sector office had not been raided at that time.
·His mother’s family were linked to a different sector and the authorities were not aware his family had moved to [Suburb 1]. When the operation occurred in [Suburb 1] the authorities approached his family. They found documents in the [Suburb 1] sector office which identified him. [In] December 2015 six people in civilian dress came to his home and questioned his father. They took his brother into custody even though he was only a low level supporter of MQM. He was detained for five months and tortured. He was released [in] May 2016 on agreement that he would work for a different political party. He maintains a presence in order to avoid further problems. His brother and his family are being watched because of him.
·The authorities have not been back to the house since 2015 but they told his father they would be keeping an eye on him and if he returns to Pakistan he will be taken into custody.
·When the Pakistan People’s Party came to power everything was then written in Sindh and not Urdu. Such behaviour pushed him to support the MQM. He only ever stayed in his zone and never ventured outside. He has been insulted because of his colour, his culture and background. It is not possible to get jobs unless bribes are paid. His father was able to obtain a job because at the time the MQM was in power.
·He cannot relocate elsewhere in Pakistan because his family name is well-known in connection with the MQM. If he were to move to Islamabad he will be asked for identification and it will show he is from Karachi. He will come to the attention of the authorities because anybody who relocates has to get a new ID involving background and criminal history checks. His uncles tried to relocate to Punjab but they could not get work there and were forced to return to Karachi.
·He delayed his application for a Protection visa because he was young and thought it was only people who arrive by boat who can make an application. Later a friend in the UK was granted protection due to his MQM involvement and he made friends in Australia who also obtained protection.

At the hearing the applicant produced further evidence in support of his case including the following:
oPhotographs of his deceased uncles
oA medical report in relation to his brother’s injuries
oInformation downloaded from the internet about ongoing harassment of MQM members in Pakistan, police brutality and extrajudicial killings in the country.
Post hearing the applicant produced a letter from his father and made a further written statement which states the following:
oHe has not personally been persecuted in Pakistan but this is because his family advised him to avoid public exposure and the operation against the MQM was still relatively new.
oHad he remained and been taken into custody he would have been put on a watch list and followed. His brother is now required to do things against his will and it is difficult for him to leave Pakistan.
oHe joined MQM because his family members were persecuted.
oIf you have worked for MQM and are arrested there is almost no chance to appear in court; rather you will be tortured or killed. The media are aligned with the intelligence forces and do not report human rights abuses against MQM members. MQM members are portrayed as traitors and their family members are hated.
FINDINGS AND REASONS
When the applicant appeared before the Tribunal on 16 April 2019 he produced a copy of his Pakistani passport which verifies his claimed identify and nationality. In the absence of any information to the contrary the Tribunal accepts he is Pakistani and has assessed his claims against Pakistan.
The Tribunal is satisfied on the evidence and documentation provided that the applicant is an Urdu speaking, Mohajir from Karachi Pakistan. The Tribunal is satisfied that his mother’s family are supporters of Altaf Hussain’s faction of the MQM. The Tribunal is satisfied that the applicant himself had a brief association with this faction of the MQM from 2011 to 2013 through his involvement in student affairs and later in the [Suburb 1] sector office. The Tribunal accepts the applicant did not approve of the criminal behaviour of certain elements of his MQM faction but felt compelled, out of fears for his own safety, to accompany members engaged in criminal acts for appearance sake. The Tribunal accepts the applicant distanced himself from the MQM in late 2013 for this reason but never formally resigned his membership.
Notwithstanding the above the Tribunal has concerns about other key aspects of the applicant’s evidence. The Tribunal’s reasons are as follows:
Based on available country information the Tribunal accepts that the Pakistani authorities, most notably the Rangers, have launched a series of crackdowns on political violence in recent years, including on the MQM, resulting in raids, arrests and disappearances. Based on news reports provided by the applicant, the Tribunal accepts his sector office in [Suburb 1] was raided in 2015. The applicant claims that after his sector office was raided the authorities obtained information linking him to MQM; photographs he has taken, membership records and documents naming him. Thereafter he claims that people in civilian dress came to his family home and questioned his father and arrested, detained and tortured his brother. On the applicant’s evidence his brother is not an MQM member or worker and the Tribunal accepts he is not.
The most recent DFAT report[1] indicates the security operation launched in Karachi by the Rangers in 2013 was aimed at reducing political violence, targeted killings, kidnapping and extortion and while it is acknowledged the operation was heavy handed, it primarily targeted criminal and armed elements of society including the MQM. Reportedly the Rangers announced they had apprehended 848 assassins affiliated with MQM ‘militant wings’ and that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. The Altaf Hussain led faction of the MQM (currently headquartered in London) attracted further attention in 2016 when Hussain incited supporters in Pakistan to attack media outlets that did not give MQM sufficient media coverage. An attack was launched on ARY News Office and subsequent violent clashes ensued with the police. The Rangers sealed MQM’s offices in Karachi, launched a treason case against Hussain and arrested MQM leaders in Karachi.
[1] DFAT Country Information Report, Pakistan, 20 February 2019
While the Tribunal accepts the possibility that some MQM members not associated with any violent or criminal activity may have been caught up in these operations the Tribunal is not persuaded, for the following reasons, that the applicant’s brother, who was never an MQM member or worker, was arrested, detained and tortured for several months as is claimed.
The Tribunal has considered the suggestion that the applicant’s brother was treated in this manner because of his association with the applicant but does not accept this. Based on his testimony, the applicant had only a brief personal involvement with the MQM from 2011 to 2013. Relevantly, his involvement with the [Suburb 1] sector office was on his evidence one year at best. Also, the applicant advised the Tribunal that he was very young at the time (“just a kid”) and he did not indicate that he played any prominent role in the organisation. Further he claims he was not personally involved in any criminal or violent activity. Even if the applicant reluctantly accompanied elements in the MQM on some of their criminal ventures on occasion his evidence is that for the most part he did what he could to avoid being implicated in these acts. Overall, the Tribunal is not satisfied the applicant’s brief involvement with the MQM resulted in him having a political profile in Pakistan of the type which has been targeted by the Rangers. Therefore the Tribunal does not find it plausible that the applicant’s brother was targeted in attempts to locate him.
The Tribunal acknowledges the applicant’s mother’s family may be a known MQM (Altaf Hussain) family but on his evidence the majority of her politically active family members left Pakistan in the 1990’s. While the applicant claims his father was previously detained in the 1990’s for no other reason than his association with his mother’s family, the Tribunal finds it significant that his father was not similarly targeted when the 2013 crackdown commenced or at the time of his brother’s claimed arrest in 2015 despite being present on the occasion. If the applicant’s mother’s family history remains so significant the Tribunal considers the Rangers may have expressed some interest in the applicant and members of his immediate family in 2013 and/or that they would likely also have taken his father into custody at the time of the claimed arrest of his brother. The Tribunal notes that the crackdown commenced in 2013 and on the applicant’s evidence his family were not approached by the Rangers until after the [Suburb 1] sector office was raided in 2015. During the hearing the Tribunal put it to the applicant that if his mother’s family was so well known for their MQM support it appears likely they would have sought out him and other family members well before the 2015 raid. The applicant has stated that he kept a low profile before leaving Pakistan and further that his family moved to [Suburb 1] a long time ago whereas his mother’s family were known in another zone. The Tribunal is not persuaded by this response. The applicant claims that his mother’s family have a very high profile within MQM, and indeed in Pakistan, and if this is correct the Tribunal considers the authorities would have had little problem locating them in [Suburb 1] if it was their attention to harass and arrest him or any of the family members. Even if the applicant was keeping a low profile it could be expected the authorities might have at least visited his home well before 2015.
Further, the Tribunal finds the applicant’s evidence that his brother is now forced to support a different political party and to maintain a visible presence at political functions he does not support for appearance sake to be rather far-fetched. The Tribunal does not believe that there is anything in his brother’s described political profile to indicate that the Rangers or anybody else would be motivated to pursue and monitor him in this manner. Also, the applicant’s evidence is that his brother and parents remain living at the same address despite the claimed harassment. The applicant claimed at hearing that his brother has not had any opportunity to leave Pakistan because he is monitored but for the reasons provided the Tribunal does not accept this.
The Tribunal acknowledges the documents produced by the applicant in support of the claimed arrest and torture of his brother, namely photographic evidence depicting an injured person he says is his brother and a medical report dated [May] 2016 which refers to multiple injuries sustained to the head, arm and leg. However, as discussed with the applicant at hearing the medical report and photograph do not assist the Tribunal in determining the cause of the injuries and/or who inflicted them. While the Tribunal accepts the applicant’s brother may have sustained some injuries which required medical treatment it is not satisfied that this is for the reasons claimed.
When asked if the applicant has any other evidence to support his brothers claimed arrest or witnesses who could attest to what happened to the family in 2015 he said he does not but indicated he had a letter written by his father. After the hearing the applicant produced a letter from his father which provides, among other things, some support for his claims, specifically, that in 2015 their house was raided, the applicant’s brother was detained and they were questioned over the applicant’s whereabouts. However, the Tribunal notes and finds it significant that his father has an interest in the outcome of this matter due to his relationship with the applicant. In the circumstances, the Tribunal’s abovementioned concerns about the applicant’s brother’s arrest by the authorities are not outweighed by this evidence. The Tribunal has given the father’s letter of support little weight in the circumstances.
As to the applicant’s own departure from Pakistan in 2014 the Tribunal notes his claim that he paid an agent to obtain his passport so as to avoid any police checks and further that he paid a corrupt border official to assist him to exit the airport unquestioned. The Tribunal does not accept this as it can see no reason why that would have been necessary. The applicant has stated that the authorities only went looking for him after the [Suburb 1] office was raided following his departure from Pakistan. While the applicant claims he took precautions throughout 2014 to avoid being detained his evidence is nevertheless that no proceedings were ever brought against him before he left Pakistan. As noted above, if the authorities had an interest in apprehending the applicant during the 2013 crackdown the Tribunal considers they would have had little difficulty locating his family. That they did not approach his family suggests that he was not a person of interest to them. The Tribunal does not accept the applicant required assistance to obtain a passport or that he bribed border officials in order to depart the country undetected.
In view of the above findings, the Tribunal does not accept that the applicant’s house was raided because of his past involvement with the MQM and his brother was arrested, detained and tortured by the authorities in 2015 for this reason or that his brother was otherwise pursued or monitored by the authorities after his release.
Is there a real chance the applicant will face serious harm on return to Pakistan on account of his political opinion?
Feared harm from the authorities, including intelligence forces and/or MQM members
The applicant claims that the authorities are monitoring and watching his family in Karachi because they are a well-known MQM family and in order to detain him for his own political activity should he return to Pakistan. He claims that the party he was associated with is considered a threat to national security because of its links to India.
As noted above, the Tribunal does not accept that the applicant’s house was raided and his brother was arrested, detained and tortured by the authorities over his MQM connections in 2015. Nor is the Tribunal persuaded that the evidence supports that the authorities are currently monitoring and watching the applicant’s family in Karachi. In this regard the Tribunal notes that the family remains living at the same premises which they have occupied for many years. If the authorities were motivated to arrest or otherwise harm them for their MQM connections or as a means of pressuring the applicant to return, it appears they would have done so in the years since his departure from Pakistan.
DFAT’s most recent assessment is that MQM members face a low risk of violence from militant groups and criminal elements in Karachi and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.[2] The Tribunal accepts the authorities may be aware of the applicant’s mother’s family ties to the MQM and that they may have come upon information about the applicant’s own affiliation with the MQM as a result of the raid on his sector office in 2015. However, on the applicant’s evidence he was not personally involved in any violent or criminal acts associated with the MQM prior to his departure from Pakistan in 2014 and there is nothing to support that he would do so if he returns to Pakistan. Nor is there information before the Tribunal to support that all MQM members or workers have been targeted for arrest. Rather, the country information indicates that the crackdown has targeted persons linked to military and/or criminal activity. In any event, since his departure from Pakistan the authorities have significantly reduced political violence in Karachi and in doing so have significantly depleted the militant and criminal wings of the MQM by apprehending and charging hundreds of culprits. While the applicant’s sector office was raided in 2015 he has been absent from the country for five years and notably during the height of the recent crackdowns on the MQM.
[2] DFAT Country Information Report, Pakistan, 20 February 2019
On the available evidence the Tribunal does not consider the applicant had a political profile in Pakistan which is likely to mean the authorities are maintaining a vigil for his return and there is no convincing evidence before the Tribunal to support that the Rangers or intelligence officers are pursuing the applicant’s immediate family, either to harm them or in a bid to locate him. The Tribunal acknowledges the applicant’s claim that two of his mother’s relatives were detained in 2015 or 2016. However, despite this and his mother’s family’s political profile, the Tribunal has concluded that she, her husband and the applicant’s brother have not been arrested or harmed by the authorities in the crackdowns against the MQM in recent years. While it is acknowledged that the applicant may have, for a short while, been more involved in MQM affairs than his father and brother the Tribunal is not persuaded that his limited involvement would result in him being treated any differently to his immediate family members should he return to Karachi now or in the reasonably foreseeable future.
In addition, the Tribunal is not satisfied, based on the applicant’s oral evidence, that he will resume any political activity with the MQM if he returns to Pakistan. When asked about his future political intentions during the hearing, relevantly he responded that he has been absent from the country for five years and he doesn’t consider the remaining MQM in Pakistan to be the ‘real’ MQM. He said he doesn’t support the Pakistani based MQM. While he said he still admires the original ideology of the MQM and Altaf Hussain’s views toward the poor, based on the current circumstances he is unlikely to support Altaf Hussain’s branch of the MQM at this time. The Tribunal notes that despite the applicant claiming to also fear members of the MQM he has since produced evidence of his former membership via contact made with MQM representatives in [Country 3] and Sydney. Other than this he has not claimed any ongoing work for the MQM since he distanced himself from the organisation in late 2013.
Given his responses and the available information, the Tribunal considers the applicant is not motivated to engage in any future political activities of the MQM based on his current views towards the movement rather than out of any fear for his safety should he not do so.
For these reasons the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm from the Pakistani authorities, including the Rangers and/or intelligence forces, for reason of his political opinion, actual or imputed, if he returns to Karachi now or in the reasonably foreseeable future.
The applicant also claims to fear harm from mafia elements in the MQM. His oral evidence to the Tribunal is that if he is detained by the authorities on return these elements would be afraid he will reveal what he knows about their criminal activities. As noted the Tribunal does not accept the applicant is at risk of being arrested and detained by the authorities if he returns to Karachi and the country information indicates that to a large extent the criminal elements of the MQM have been rooted out by the Rangers. Therefore the Tribunal considers the risk of him being harmed for this reason to be remote.
In his written claims, the applicant also claims to fear harm from MQM members for leaving the party. In his oral evidence the applicant claimed he never formally resigned his membership but rather took steps to distance himself from the organisation in late 2013. As such it is not on record that he in fact ever left the organisation. Notwithstanding this, the applicant had only a relatively brief period of personal involvement with the MQM in the years prior to departing Pakistan. In his own words he was “just a kid” at the time and his described level of involvement in the activities of the MQM, criminal or otherwise, is not in the Tribunal’s view at a level likely to have attracted much attention. He has now been absent from the country for five years and the Tribunal is not persuaded that any remaining MQM members from his faction will be interested in targeting him if he returns to Karachi. He has not claimed, and nor is there evidence available to support that anybody from his former faction of the MQM has sought to find him in Karachi through his family. In any event the Tribunal notes that since his departure from Karachi the authorities have successfully dealt with the criminal elements within the MQM such that the risk of violence to MQM members from non-state actors has, according to DFAT, significantly reduced since security operations began in 2013 to the point that DFAT assesses that MQM members face only a low risk of violence in Karachi. Indeed the applicant acknowledges in his statement dated 14 February 2019 that MQM offices in Pakistan are now either closed or destroyed with all documents having been removed. When DFAT’s assessment of the MQM’s current status was discussed with the applicant at hearing he indicated that they still have their safe zones and underground activities. While his response is acknowledged the Tribunal remains of the view that the recent security operations, which included a big focus on MQM criminal and military activity, have greatly reduced the scope and influence of the persons and the organisation he claims to fear.

For these reasons the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm from former MQM members if he returns to Karachi now or in the reasonably foreseeable future.
Feared harm from disgruntled business owners
In his written evidence the applicant claims that he was forced to collect extortions from businessmen, and forced businesses to close to ensure MQM strikes would be successful. He claims that he will face complaints from these business owners if he returns to Karachi. During the hearing the applicant denied any personal involvement in such matters. He said he misrepresented his role in such behaviour in his written claims because his English is not that good. Nevertheless, he said that he had no choice but to be present on occasion when such things occurred and the business owners will believe he is also to blame. When asked what he thinks the business owners will do to him if he returns he said they will complain about him to the authorities. When asked if they have placed any demands on his family members in his absence he said they have not. Given his limited visibility in the claimed harassment of business owners and in the absence of any demonstrated attempts by such business owners to find the applicant in connection with such matters the Tribunal is not satisfied that there is a real chance he will face harm for this reason if he returns to Karachi.
Discrimination against Urdu speaking Mohajirs and Urdu speakers associated with the MQM
The applicant claims that he is not considered Pakistani, that he has been harassed and insulted in the past because of his ethnicity and that he will never get a job in Pakistan and that it is difficult to obtain documents. He states that the only reason his father was employed as [a government employee] is because MQM was politically powerful when he was recruited.
Mohajirs of Pakistan primarily speak Urdu and the Tribunal finds that the applicant can safely return to Karachi, which together with Hyderabad is where the Mohajir population in Pakistan is primarily located.[3] While somewhat dated, a 2003 Immigration and Refugee Board of Canada advice[4] notes information provided by the Human Rights Commission of Pakistan (HRCP) which indicates that discrimination against Mohajirs is “very limited”. According to the HRCP, “In some cases, Mohajirs may be a subject of (semi-racist) jokes – but these are at the level of jokes about Irish people or Poles etc, in a western context. Mohajirs in fact hold many top jobs in the country, and other groups frequently complain [that] they are discriminated against by the Mohajirs. The only case where discrimination is a factor is if the Mohajirs belong to the political party, the Mohajir Qaumi Movement (MQM), one faction of which is facing some government-led intimidation, mainly in Karachi”.
[3] Pak Institute for Peace Studies 2009, Profiling the Violence in Karachi
[4] IRBC, Pakistan: Treatment of Mohajirs (Urdu-speaking Muslims who fled to Pakistan from India following the 1947 partition of the sub-continent) by the general population, particularly in Lahore and Islamabad; whether there is an internal flight alternative for Mohajirs in Pakistan, aside from Karachi (1998-August 2003)
Given the above and together with the crackdown launched on the MQM commencing in 2013 in Karachi, the Tribunal accepts that known Urdu speakers associated with the MQM may experience some discrimination in government employment. Notwithstanding that the Tribunal does not accept the applicant was a high profile MQM worker himself, if he returns to Karachi, where there is a significant Urdu speaking Mohajir population, the Tribunal considers he will nevertheless have other employment options available to him. In Australia the applicant has obtained work experience as [an Occupation 1] and could use this experience to search for similar employment within the large Mohajir community in Karachi. The Tribunal does not accept that the applicant will be unable to obtain any employment if he returns to Karachi because he is an Urdu speaker or Urdu speaker associated with the MQM.
Further, the applicant has family members and a home to return to in Karachi and his evidence is that the family are currently sustaining themselves from his father’s pension. While the applicant may well encounter some discrimination in government employment and experience derogatory remarks on occasion due to being an Urdu speaking Mohajir and/or an Urdu speaker associated with the MQM, based on the available evidence the Tribunal does not accept this would be so severe that it will threaten his ability to subsist or amount to persecution.
The applicant also claims that it is difficult to obtain documentation as an Urdu speaking Mohajir but as discussed with him at hearing his life experience in Karachi does not support this. He was educated, admitted to University and was able to obtain identity documents including a Pakistani passport.
On the available evidence the Tribunal is not satisfied that there is a real chance the applicant will suffer any serious harm on return to Karachi on account of him being an Urdu speaking Mohajir and/or Urdu speaker associated with the MQM.
For completion, the Tribunal asked the applicant whether he has any other reason to fear returning to Pakistan and he referred to the fact that he previously worked for the student group APMSO. He said that there were sometimes little clashes with other political groups and because of this he generally stayed in his own area in Karachi. The Tribunal asked if he was personally involved in those clashes and he repeated that there were little clashes usually involving verbal arguments, some threats and pushing. Based on his oral evidence the Tribunal is not satisfied he suffered any past harm which would amount to persecution for reason of his involvement in the student group and there is nothing before the Tribunal to indicate he would do so in future for reason of his past activity. The applicant is no longer involved with APMSO or indeed actively engaged in any MQM political activity at all or in the Tribunal’s view likely to be in the reasonably foreseeable future. The Tribunal is satisfied there is not a real chance the applicant will suffer serious harm on return to Pakistan for this reason.
Having considered the evidence individually and cumulatively and for all the above reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in his home locality in Karachi, Pakistan. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. Based on the findings above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk the applicant will suffer significant harm of the type outlined in s.5(1) and 36(2A) of the Act. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5902

21 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal