1607505 (Refugee)

1607505 (Refugee) [2019] AATA 1446 (11 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1607505/1607504
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Tania Flood
DATE:11 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants’ protection visas.

Statement made on 11 June 2019 at 2:31pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Muttahida Qaumi Movement (MQM) – affiliation to MQM London – particular social group – single women – family’s links to the Altaf group – applicants' level of involvement in MQM activities – claimed past harm by military and para-military groups – extortion attempts on business – no real chance of serious harm – means to subsist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
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 6 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 27 March 2015. The delegate refused to grant the visas on the basis that their fear of persecution is not well founded and because it was not accepted that there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed to Pakistan there is a real risk they will suffer significant harm.
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 applicants will suffer serious harm if they return to Pakistan for reason of their 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 them being removed from Australia to Pakistan there is a real risk that they will suffer significant harm.
Whereas the delegate made a combined decision in respect of both applicants, they applied separately to the Tribunal for a review of the decision. As their claims are largely identical and as they consented to be interviewed together the Tribunal has made a joint decision in respect of their claims.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In her application form for a Protection visa the first named applicant states:
She is an unmarried Urdu speaking woman from Karachi, Pakistan. Her mother and brother are currently residing in Australia. She completed studies at [Institute 1] in [year]. From 2010 she worked as a Supervisor in a [business] in Pakistan. She arrived in Australia [in] March 2015 on a Visitor visa.
In her application for a Protection visa the second named applicant states:
She is an Urdu speaking widowed woman who was born in Patna India to Pakistani parents. She has two children: a son who is an Australian citizen and a daughter, a Pakistani citizen who is residing in Australia. She arrived in Australia [in] March 2015 as the holder of a Visitor visa. She previously holidayed in [Country 1] from [February] 2014 to [March] 2014.
In separate but identical statements the applicants submit the following:
They live alone in Pakistan. They have faced many problems because their father and brother were both involved in the Muttahida Quami Movement (MQM). The father is deceased but when he was alive he was able to look after them. Now they only have the support of their [family member] who is [specified position] of MQM in Sydney. He is also involved in UK MQM.
When in Pakistan they changed their address and phone numbers many times in order to avoid trouble but some members from within the party caught them and again troubled them with threats.
They have received threats against their life in Pakistan and they are afraid they will be killed if they go back to Pakistan.
There is no safety in Pakistan as anarchy and restlessness is on the rise and the state does not have enough resources to cope with all the problems. They receive so many complaints and do not take them seriously. The authorities have no capacity to deal with every complaint.
On 27 February 2019 the Tribunal received a submission made on behalf of the applicants. It is submitted that the applicants fear persecution in Pakistan due to their family’s strong involvement with the Muttahida Quami Movement (MQM). They fear returning to Pakistan due to their past experiences of threats being made to their lives, harassment and extortion demands and due to the prevailing conditions that threaten MQM members, its supporters and workers.
[The second named applicant] claims that she was persecuted continuously from about 2010 to 2015 because of her family’s political affiliations with MQM. Her husband was a prominent activist of the MQM, working as [specified position] of [Suburb 1]. Her son has been an active member of MQM Australia and was [specified position] in Sydney from 2012-2016. He also belongs to the London based Altaf group. Her brother in law ([Mr A]) was one of the [high profile leaders] of MQM. She has health conditions that made her more vulnerable and often had panic attacks in anticipation of the return of the groups threatening her and her daughter.
[The first named applicant]’s claims are similar to those of her mother. Additionally, she openly worked for the MQM in Karachi though she was not a member of the party. She has been a member of MQM in Australia since 2015.
In addition it is claimed that the applicants’ [marriage hall] named “[Business 1]” was destroyed in 2018, believed to be by paramilitary Rangers. Their family’s plot of land in Karachi was forcibly occupied by unknown people believed to be instigated by political rivalry in 2018.
The family’s sole income generating business was destroyed and their lands forcibly occupied and they have no means of living in Karachi. They are too fearful to even go to Karachi to inspect the damage and chase away the occupiers of the land.
Their brother/son has not been in Pakistan for the last five years because he fears he could be attacked and harmed.
They are persecuted by political rivals and by military and paramilitary groups such as Rangers.
The MQM’s members, activists and their families are often persecuted, in the power dynamics of Karachi and elsewhere. Its leadership is forced into exile due to the harassment and assassination plots levelled against them. It is reported that many party faithfuls have been killed by extra judicial methods and/or subjected to intense military crackdown.
Amnesty International reports 2016/2017 and 2015/2016 state that security forces, particularly paramilitary Rangers in Karachi committed human rights violations with almost impunity in relation to MQM. The 2016/2017 report cites the death of Aftab Ahmed, a senior MQM member at the hands of security forces, tortured before death. The reports also indicate the rise of violence against women, in acts of rape, sodomy, domestic violence and kidnappings.
A Human Rights Watch Report 2016 reports similarly on these matters.
The applicants’ family’s involvement with MQM is well known and the likelihood of them being persecuted is not remote. Previously they were persecuted for about five years and in 2018 their place of business was destroyed and their land occupied. The past chain of events, as well as the current situation in Pakistan, where hundreds of MQM supporters and members are still persecuted indicate their fears are not mere speculation.
Attached to the submission are the following documents:
A letter from [Mr B], [Position 1], MQM Australia Unit in relation to [the first named applicant]
A letter from [Mr B], [Position 1], MQM Australia Unit in relation to the applicant’s brother, [Mr C]
Photographs showing the destroyed and demolished [marriage hall]
Recent news items on atrocities committed on MQM and its membership
Tribunal hearing
The applicants’ evidence to the Tribunal is summarised below:
Applicant daughter
She is a single, Sunni woman from Karachi Pakistan. She visited Australia [number of times] before her most recent arrival in 2015. On all occasions she entered the country on a Visitor visa. Prior to her most recent arrival she was previously refused Visitor visas. Soon after she and her mother arrived in Australia in 2015 they applied for Protection visas as was their intention to do prior to them departing Pakistan.
Her brother owned a marriage hall in Karachi and they also had some land which has now been occupied by another person who has illegally built a house on it. The marriage hall has since been destroyed.
Prior to departing Pakistan she lived with her mother in their own home in North Karachi. The ground floor of their house was occupied by a person who managed their marriage hall business. Currently, he is no longer living there and their house is unoccupied. She claimed to be unaware of the current state of their house despite knowing it had been broken into at the time the marriage hall was destroyed.
She does not have any close family in Pakistan. Her aunts and uncles are all residing overseas. Her father died in 2004.
She holds a [Qualification 1]. In Karachi she managed a [business] for 5-6 years. Sometimes she had periods of time away from work due to her mother’s health and because of political unrest. She nevertheless remained in the position until she departed Pakistan. In Australia she is working as [an Occupation 1] in a [specified workplace].
In Pakistan, she and her mother relied on her salary, income from the marriage hall and some financial support which they received from her brother.
Her brother came to Australia more than 25 years ago. He sought asylum but in the end was granted a different type of permanent visa.
She and her mother left Pakistan because her father and brother were involved with the MQM and they were receiving threats because of that. There are 2-3 different groupings in MQM and her family belonged to the MQM London group (or Altaf Hussain group). In the years before they departed Pakistan different people came to their house to demand money from them. She is not sure if they were from their own party or a different party. Sometimes people in Rangers uniforms came to demand money and sometimes people in plain dress. Sometimes she felt the people were from her own party. Sometimes they harassed her and snatched her scarf. There was nobody in Pakistan to provide them with protection.
The Tribunal put it to the applicant that she previously told the delegate that it was people from their own party who asked them for money and that she had not previously claimed that it was Rangers demanding money from them. She replied that she told the delegate that it was different groups of people who asked them for money.
The demands for money commenced in 2010 and in the beginning it was not that frequent. After one or two years they came more frequently – once or twice a week or once a fortnight. The people asked questions about her brother and asked them for money. They told her mother that they would harm her daughter. She said that on occasion she and her mother went to stay with her brothers friends for a couple of days for some respite. She said she and her mother did think about moving elsewhere but she herself had some small dealings with the MQM and attended their functions and so she was also known in Karachi. She said nobody would have agreed to rent them a property because they are known to be associated with MQM. While working she used a fixed driver and when the situation got worse she started covering herself up.
She never paid money to the people who came to her door but the manager of the marriage hall sometimes paid money on their behalf. She said he paid them amounts of about 10,000 on 5-6 occasions.
When asked what happened when she failed to comply with their demands made at her door she said that they sometimes pushed her and snatched her scarf. Once she said they pulled her hair but they were always threatening to kill her. She said she was scared they would ‘dishonour’ her. She said her mother never opened the door to them if she wasn’t home.
Once she said they lodged an FIR with the police but no action was taken. Her brother talked to the London party but nothing came of that either.
As to her family’s MQM connections she said her family were involved with the MQM London group and that her [relative] was the right hand man of Altaf Hussain. [The relative] went back to Pakistan four years ago and was arrested. Her brother was once in [specified position] of MQM here in Sydney. She said that she was personally involved with the MQM in Karachi. She clarified that she worked on women’s affairs including attending functions and participating in small activities. She said that when her father was alive she went along to speeches with him. In Australia, she said there is a sector office in Sydney and Melbourne and if the Melbourne office is working for women she goes there and participates in their events. She said she has been to Melbourne four times and once went to a protest in Canberra. She said her mother has played no particular role in the MQM but when in Pakistan she sometimes went to speeches with them.
As to her family’s commitment to the MQM she said that they supported Altaf Hussain from the beginning but over the years the party has been damaged and has become divided. She said they do not vote for Altaf Hussain but they continue to support charity work of the MQM.
Regarding the demolition of the marriage hall she said it occurred in 2018 when Rangers broke up the property using a tractor. She said her brother had a lease on the property but was given no notice that this would happen. She said her brother appealed to the MQM people in London for assistance but has received no support.
She fears returning to Pakistan because her life could be threatened by MQM members (not the London group) and the Rangers. They will be continually harassed and threatened and she could be ‘dishonoured’. They know about her brother’s ongoing role with MQM London and it is possible they could be arrested at the airport.
As to whether she fears harm in Pakistan as a single woman she said that she fears the MQM and the Rangers. She said that ordinarily people will not touch or harass you on the street. What happened in the past is due to the problems she had with the MQM and the Rangers. Another problem she has is that her mother is ill and she has no-one to help her in Pakistan to take care of her.
Applicant mother
The applicant is elderly and was not a particularly helpful witness as she repeatedly claimed to not know much about the situation she and her daughter faced in Pakistan. Largely, she deferred to the evidence of her daughter and son. Nevertheless, the Tribunal questioned her about her fears of returning to Pakistan and she said she is scared of returning because she is living alone there with her daughter. Broadly, she repeated the evidence that she and her daughter were harassed for money in their home and she said that she is scared her daughter will be ‘dishonoured’ by such persons if they return. She said she does not know who the people were but said they were not from the MQM. She said she does not remember how long it went on for. She also stated that she does not know why they were being targeted in this way.
The applicant said that they don’t have any rights as women in Pakistan. When questioned further about this statement she said that they experienced nothing more than the harassment they have claimed. She repeated her claim that they are alone there and that she is worried about her daughter’s safety.
As to her family’s involvement with the MQM she said her husband and son were actively involved in the party. She said she does not know whether her daughter was involved because she doesn’t tell her much.
As to the circumstances surrounding the demolition of the marriage hall she claimed not to know when it happened, who did it or why. When asked what has become of her home she said that it was also broken into at the same time and items were taken away.
The applicant confirmed that she has no family remaining in Pakistan as her three brothers and three sisters all moved overseas for similar reasons to her and her daughter.
Witness brother/son

The Tribunal heard evidence from the applicants’ son and brother. He said that he is associated with the MQM London group. Previously he was in [specified position] of the MQM unit in Sydney but not presently. He said that the London group has been marginalised and is not operational in Pakistan. The organisation is divided and whoever supports the London group faces problems. He said the Rangers are trying to destroy the Altaf Hussain faction. He said he is well known for his support in Pakistan and this is the reason his mother and sister have been targeted.
As to his family home in Pakistan he said he heard from his friend that it has suffered a little bit of damage. He said the manager of the marriage hall, who formerly lived there, has run away because he is scared of the Rangers. When asked if he has any proof to support that it was the Rangers who demolished the marriage hall he said he would enquire about that.
As to any recent involvement with MQM he said that he returned to Pakistan about 5 or 6 years ago and he visited the Nine Zero Headquarters of MQM in Karachi. He said he spoke about MQM’s activities in Australia and invited members to visit Australia. When asked if his visit captured any media attention he said it was not.
When asked what support he provides the MQM he said that he attends protests in Australia over the mistreatment of his party in Pakistan. He said he makes some small donations of about $50 per month to the party. If asked to go to Canberra for events he goes. He said he has also attended 2 or 3 meetings in London.
Post hearing submissions
On 17 May 2019 the Tribunal received a further submission from the applicants’ representative. As to what will happen if they go back to Pakistan [the first named applicant] submits:
She risks serious harm, both psychological and physical and possibly death at the hands of strangers who have been bothering her and her mother. Since her departure their house has been damaged, the marriage hall levelled to the ground. Such threats will continue to happen in the future and she feels unsafe as a woman, with no family and support networks to look after her welfare and security in Pakistan. Her mother is elderly and has health complications and her other relatives have fled the country. They were granted protection in other countries due to the accelerating threat levelled against their faction of the MQM.
There are three factions of the MQM party, namely the Altaf group or the London group, PSP and Karachi MQM. The latter two groups have the backing of the current government while the Altaf group is banned. The government wants to curb the power of the Altaf group due to its popular support. The government is trying to achieve this through PSP and MQM Karachi groups who are acting against the Altaf group and its membership.
The applicant accepts that neither she nor her mother is well-known in the community. However, her brother, her uncle and her father are well known Altaf group supporters. Their profiles impact on her and her mother.
Relocation is not an option for the applicant and her mother. Different cities have different dialects and names and therefore it not hard to identify them. Security employment and suitable accommodation would be difficult. There are also safety concerns because of her family’s significant links with the Altaf group which is banned in Pakistan.
[The second named applicant] submits that she answered ‘I don’t know’ to the question asked by the Tribunal about her whether her daughter works for the MQM because her son and daughter do not disclose details of their involvement with the MQM with her. This is because she gets panic attacks and they avoid discussing sensitive issues with her. She knows about her daughter’s allegiance to the Altaf group but is not aware of the extent to which she is involved at present.
The applicants’ reiterate that they are persecuted for their political beliefs. That is, that they are targeted for their family’s strong links to the Altaf group of the MQM which is a banned political party in Pakistan. A distinction should be made between the Altaf group and other factions of the MQM.
On 3 June 2019 the applicants provided a link to a news item on [Mr A] and a copy of a medical certificate in respect of a hospital admission by their brother/son for a heart condition.
On 4 June 2019 they provided an Urdu message which reportedly reads “Quaid Tareekh Altaf Hussain requests members and local Pakistanis of MQM to pray for the recovery of member of Sydney [Mr C]”. Also attached is a discharge letter of [Mr C] from hospital, a family photo with [Mr A] and photos of the deceased [Mr A].
FINDINGS AND REASONS
Nationality
When the applicants appeared before the Tribunal they produced their Pakistani passports which verify their claimed identities and nationalities. In the absence of any information to the contrary the Tribunal finds they are Pakistani citizens and has assessed their claims against Pakistan.
MQM affiliation
The applicants claim their family has a close affiliation with the MQM, specifically the Altaf Hussain led London group faction. The Tribunal notes that the MQM has been a major political force in Karachi since the mid 1980’s when it formally launched itself as a political party to represent the interests of Mohajir’s, Muslim Urdu speaking migrants originally from India and their descendants. Prior to the 2018 general election, MQM exercised considered political influence in Sindh but its influence has now diminished due to leadership and faction conflicts. The MQM has been involved in conflicts with various political parties in Karachi for decades and violent conflicts have also occurred between various offshoots of the MQM. Some high-ranking MQM members have been killed in targeted assassinations in recent years and in 2013 the Rangers commenced operations in Karachi to reduce political violence, which impacted the MQM. In 2016 hundreds of MQM members were apprehended during operations against alleged violence and extortion in Karachi.[1]
[1] DFAT Country Information Report, Pakistan, 20 February 2019; Muller, T C et al. 2011, ‘Pakistan’, Political Handbook of the World Online Edition 2011, CQ Press Electronic Library
The first named applicant’s evidence, which is supported by her mother and brother, is that her late father and her brother played a prominent role in the Altaf Hussain led faction of the MQM (or the London group) in Karachi. She claims her brother maintains his involvement with the MQM London group faction in Sydney. During the hearing the first named applicant also advised that her [relative] was closely associated with Altaf Hussain. In support of their claims the applicants’ provided evidence of family members who have been granted asylum in [Country 2] and [Country 3] in claimed similar circumstances in 2004 and 2014 respectively. After the hearing they provided a link to a news item on [Mr A], who they claim is their uncle/brother-in-law. This article[2] indicates that [Mr A] was a former MQM leader and that he was arrested on return to Pakistan in [year] after [many] years in exile on terrorism related charges. The article reports that [Mr A] left Pakistan in [Year 1] and in [Year 2] the MQM revoked his membership after he spoke out about a corrupt lobby in the MQM and severed all ties with MQM London. A further article sourced by the Tribunal reports that [Mr A] was released from custody on [date] and sought court permission to leave Pakistan for medical treatment. The article indicates he subsequently passed away in London.[3]
[2] [Source deleted]
[3] [Source deleted]
On the available oral and documentary evidence the Tribunal accepts that various family members of the applicants, including their father, brother in law/uncle and brother, were actively associated with the MQM’s London group. The Tribunal accepts that family members of the applicant have been granted asylum in [Country 2] and [Country 3] although on the available evidence it is not clear on what grounds protection was granted. Regardless, the Tribunal is prepared to accept the applicant’s evidence that it was on account of their actual or imputed MQM involvement. The Tribunal also accepts that the applicants’ brother/son has maintained some involvement with the MQM London group in Australia and London. Based on documentary evidence, the Tribunal accepts the brother/son served as [specified position] of the MQM London group Sydney unit from 2012 to 2016 and in that capacity played host to visiting MQM officials from Pakistan and local politicians and has participated in MQM London group events held in Australia.
It is also submitted that the first named applicant openly worked for the MQM London group in Karachi and has been a member of MQM London in Australia since 2015. During the hearing, pursuant to the requirements at s.424AA of the Act, the Tribunal put it to the first named applicant that a written summary of her interview with the delegate indicates that when asked about the MQM she described her involvement as sometimes accompanying her father to MQM events when she was young and to being an MQM supporter. As to her MQM activity in Australia she said that she had been thinking about whether to attend a protest in Melbourne with her brother. The Tribunal put it to the applicant that this information is relevant because it doesn’t appear to be in alignment with the level of MQM involvement described in a submission to the Tribunal on 27 February 2019 which declares that she openly worked for MQM in Karachi and has been a member of MQM in Australia since 2015. The Tribunal informed the applicant that if it were to rely on this information it could form the view that she has overstated or exaggerated her claims in respect of her own MQM involvement and that this could lead the Tribunal to reject aspects of her claims.
The applicant opted to respond immediately to the information. She reiterated her evidence that she has attended a political protest in Canberra and has attended MQM charity functions in Melbourne on four or five occasions. She repeated that she was involved in MQM women’s affairs in Karachi.
The Tribunal notes that the first named applicant has provided a letter of support from [Mr B], [Position 1], MQM Australia which states that she has been a member of MQM’s women’s wing in Australia since June 2015 and has contributed to political and social events of the women’s wing. The Tribunal finds it curious that in an earlier submission it is claimed the first named applicant was never a member of the MQM in Pakistan and yet she formally became a member in Australia in 2015 despite indicating to the Tribunal that she would not vote for the MQM and is only interested in supporting charity works associated with the party.
The Tribunal accepts the first named applicant was a supporter of the MQM London group in Karachi. However, it is not satisfied there is evidence to support that she was actively involved in the party or a member of MQM in Karachi. The Tribunal considers her oral evidence to the delegate to be significantly at odds with her evidence to the Tribunal and the differences in her evidence are not in the Tribunal’s view adequately explained by her repetition of her claimed level of involvement in Australia and Karachi. Also, the Tribunal considers she would have informed the delegate of her involvement in the women’s wing in Karachi if it was indeed significant. Relevantly, the Tribunal notes that despite their claimed family history with the MQM the post-hearing submission concedes that neither of the applicants is well known in their community in Karachi. The Tribunal has concluded that while the first named applicant may have been a sympathiser of the MQM London group she played no significant or identifiable role in the party herself while living in Karachi.
During the hearing the Tribunal questioned the first named applicant about her ongoing support for Altaf Hussain, the leader of her favoured MQM faction. She claims she would no longer exercise a vote for Altaf Hussain but will continue to be a supporter of MQM London group charity works, particularly charity work for women. The Tribunal accepts that the applicant joined the MQM London group’s women’s wing in Australia in 2015 and has participated in one political protest in Canberra and attended some women’s wing activities in Melbourne. While the Tribunal considers it likely her Australian membership was motivated in part by a desire to strengthen her claims for protection, given her family history, the Tribunal is satisfied that her actions in Australia have not been solely for this reason.
The second named applicant has claimed no personal involvement in MQM activities although it is said she sometimes went along to listen to MQM speeches when her husband was alive. The Tribunal accepts she too was a sympathiser of MQM’s London group faction in Pakistan but on the available evidence the Tribunal finds she is not participating in any MQM related activities in Australia.
Claimed past harm
The applicants claim that they were persecuted continuously from 2010-2015 at their home by MQM members (Altaf Hussain’s London group faction and/or others) and by military and para-military groups, namely the Rangers. For the following reasons the Tribunal does not accept this.
In the Tribunal’s view the applicants’ evidence as to who was extorting and harassing them over a lengthy period of time is not clear or convincing. The first named applicant informed the Tribunal that it was “different” people who came to their home asking for money. She said she wasn’t sure if they were people from their own MQM faction or a different party and she said that sometimes it was people in the uniform of the Rangers who came. The delegates decision indicates that the first named applicant stated there were many groups involved but the Rangers were not specifically mentioned as a participant group. The second named applicant provided little more clarity on the subject by also claiming that it was “different” groups of people who came to their door. Relevantly, she also made no mention of the Rangers or people in Rangers uniforms coming to their door to demand money and she indicated that she did not know why they were being targeted by those people.
In addition, as discussed with the first named applicant at hearing, the Tribunal has difficulty believing that MQM members from her own or another faction, or indeed any other grouping, would have kept coming to their home twice a week or at least fortnightly for five years as is claimed. In response the first named applicant pointed out that the situation was not that bad in the first one or two years but became much worse as time progressed. Even so, the Tribunal is not persuaded the perpetrators would have maintained such vigilance, even for one or two years, when on the available evidence the applicants never personally gave them any money.
The first named applicant has also provided differing accounts of what transpired when the perpetrators came to their home. During the hearing the first named applicant indicated that she was pushed, had her scarf snatched and once had her hair pulled. This was supported in part by the second named applicant who said that sometimes the people touched her daughter when they were asking them for money. The delegates decision which is before the Tribunal transcribes a section of the interview with the first named applicant which confirms that no money was ever paid when people came to their door and that in response they merely threatened her mother that they would harm her. The record indicates that no mention was made of any claimed physical harassment on the occasions the people came to their door asking for money. The Tribunal has concluded that the applicants’ have exaggerated their claims of physical harassment following the negative decision of the delegate.
Also, the Tribunal notes the applicants’ written claims state that they changed their address many times in order to avoid trouble but they were caught and troubled again with threats. On the contrary, in her evidence to the Tribunal the first named applicant stated that she lived in her home with her mother for more than ten years before coming to Australia. When asked if she thought about moving to another area to avoid the harassment the first named applicant stated that they were two females alone and while they thought about it they were unable to do so. She added that because she was known as an MQM supporter nobody would have rented them a property. As noted above, the applicants concede they were not well known MQM supporters. Given the differing account of events, the Tribunal does not accept the applicant’s changed their address or contemplated doing so on account of the claimed harassment at their home. Even if the first named applicant’s latter account of what transpired is to be believed the Tribunal considers the fact that they were prepared to remain living in their home for the five year period it is claimed these events occurred to be problematic.
The Tribunal also finds it implausible that the people who came to their door repeatedly were also motivated, at least in part, to find the applicants’ brother/son as is claimed. On his testimony the applicants’ brother/son has been living in Australia for more than 25 years and in recent years has only returned infrequently to Karachi and for very short visits. He said he visited the Nine Zero headquarters of MQM about six or seven years ago to invite MQM members to visit Australia but the visit was not covered in the local media. He said he has also visited the MQM in London two or three times. While the Tribunal acknowledges he has worked for the MQM in Australia and interacted with the London group over the years, he has otherwise not persuaded the Tribunal that he has maintained a high MQM profile in Karachi such that persons from any faction or indeed other organisations would be so interested in his whereabouts that they would continuously harass and threaten an elderly woman and her daughter. It is not claimed that the extortionists or Rangers came to their door in connection with their uncle/brother-in-law, [Mr A]. In any event, as noted above, [Mr A] was exiled from Pakistan since [Year 1] and only returned in [year] after the applicants had departed Pakistan. The Tribunal can see no reason why the applicants would have been harassed on account of their uncle/brother-in-law during the period they claim. His absence from the country was well known and again the Tribunal considers there would have been little to be gained from continuously harassing and threatening the applicants over his MQM links.
The Tribunal has considered the applicants’ evidence, but is also not persuaded that the Rangers were involved in the extortion attempts they encountered in Karachi. Until the Tribunal proceedings commenced no mention was made of their involvement in the extortion attempts and given the notoriously heavy handed approach reportedly taken by the Rangers against MQM and other criminal elements in the operations launched in Karachi in recent years the Tribunal is of the view that their involvement would have been mentioned in their written claims had that been the case. Also, the Tribunal is not satisfied that the Rangers would have come to their door between 2010 and 2015 searching for their brother/son given he has played no significant role in MQM politics in Karachi for over 25 years or in connection with their uncle/brother-in-law. The Tribunal does not accept that persons from the Rangers, or in Rangers uniforms, were involved in any extortion attempts on the applicants.
For the above reasons, the Tribunal is not persuaded that the applicants were continuously harassed for money and/or information about their brother/son or indeed their uncle/brother-in-law or because of their own MQM involvement at their home in Karachi.

Notwithstanding the above, the applicants claim that the manager of their marriage hall business on a few occasions paid money to extortionists. The Tribunal is prepared to believe this given it is reported that protection rackets have long existed as a widespread practice in Karachi and that a wide range of businesses in Karachi are affected by extortion.[4] However, given this reporting, and for the reasons outlined above, the Tribunal finds that any payments made were in relation to extortion attempts on the business rather than on the applicants themselves.
[4] Menace of extortion, Dawn 4 December 2013; Karachi in the Twenty-First Century: Political, Social, Economic and Security Dimensions, Mansoor Bin Tahnoon al Nahyan, 2016, Cambridge Scholars Publishing
It is also claimed that in 2018 the Rangers demolished the marriage hall premises because of the family’s MQM connections. Photographic evidence has been produced depicting a marriage business called [Business 1] in ruins. During the hearing the Tribunal enquired whether there is evidence available to show that the Rangers were involved in the demolition of the business. In his supporting testimony the applicant’s brother/son said that the former manager, who previously lived in the same building as the applicants’ has run away because the Rangers were involved and he fears them. He said he would enquire whether any reporting of the incident exists. The Tribunal notes that no further evidence in support of this claim had been provided at the time of this decision. Relevantly, the Tribunal also finds it significant that an earlier submission on this issue merely speculates that the destruction is “believed” to have been done by Rangers. On the available evidence the Tribunal is not prepared to accept that the current state of the marriage hall business is a result of action taken by the Rangers. There is also no evidence to support that the marriage hall business was destroyed by groups politically opposed to the applicants and/or their family.
Having carefully considered the circumstances and the available evidence, the Tribunal considers it likely that the applicants wish to reside with their brother/son in Australia as they have no close remaining relatives in Pakistan. The Tribunal has some sympathy with the applicants wish to be reunited with their only remaining close relative but has formed the view that they have greatly embellished their claims in order to achieve this outcome.
Is there a real chance the applicants will suffer serious harm if they return to Karachi from either MQM members or military or para-military groups (Rangers)?
It is claimed that if the applicants return to Karachi the same thing that happened to them in the past, or even worse, could happen. They claim the reason they will be targeted is because of their family’s affiliation to the MQM London group.
As to the claimed extortion, the Tribunal does not accept that the applicants were continuously harassed and extorted at their home in Karachi prior to departing Pakistan. The Tribunal has accepted that the marriage hall business was affected by some extortion and based on country information the Tribunal does not discount the possibility that criminal elements in the MQM could have been involved. However, this business is now no longer operational and therefore further attempts to obtain money through extortion would appear to be fruitless. In the circumstances, the Tribunal considers the chance of any further extortion attempts to be remote. In any event, 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.
As to their claimed political affiliations, the Tribunal accepts on the basis of the submissions made that there are ongoing reports of the Rangers apprehending and harming certain MQM members in the course of their security operations in Karachi. The Tribunal accepts that their uncle/brother-in-law was a high profile former member of the MQM and that he was arrested on return to Pakistan in [year] but the above news items indicate he was subsequently released for medical treatment and died in London. Well prior to his death he publicly distanced himself from MQM London activities and announced he was considering heading up a new political formation. The Tribunal considers the chance of the Pakistani authorities and/or rival MQM members harming the applicants because of their links to him to be remote in the circumstances.
Given her age and the available evidence in respect of the second named applicant’s past and present political involvement the Tribunal finds she will not engage in any public support for the MQM if she returns to Karachi. The Tribunal accepts that if the first named applicant returns to Karachi she may wish to continue to support some charitable activities of the MQM. Despite that she joined the MQM London’s group in Australia, for reasons which the Tribunal considers likely include strengthening her claims for protection, the Tribunal is not convinced she would seek membership of MQM London group or any other faction of the MQM or involve herself in any overt political activity of the MQM in Karachi. In any event, recent reporting[5] which is supported by the oral testimony of her brother, indicates that following the 2016 crackdown by the Rangers the MQM London branch is marginalised, depleted and effectively non-operational. According to DFAT[6] in 2016 the Rangers sealed MQM’s offices in Karachi and launched a treason case against Altaf Hussain and arrested other MQM leaders in Karachi. Whilst DFAT does not stipulate which faction’s offices were sealed its reporting on this matter is linked to actions taken against the MQM following a controversial address made by Altaf Hussain from London which resulted in violent clashes between MQM supporters and the police. In the circumstances, the Tribunal considers the chance of the first named applicant participating in events organised by the MQM London group on return to Karachi, and thereby attracting adverse attention from the Rangers, is remote.
[5] DFAT Country Information Report, Pakistan 20 February 2019
[6] DFAT Country Information Report, Pakistan, 20 February 2019
DFAT also 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.[7] There is no suggestion that the applicants’, or indeed their brother/son, are linked to any MQM London group related political violence and/or criminal activities. As noted, in their post-hearing submission the applicants’ concede that neither is well known in their community. Given their brother/son’s long absence from the country and his reported profile in the MQM it is also difficult to believe he would be perceived to be associated with such activities. The Tribunal accepts that the available evidence indicates that their uncle/brother in law had numerous cases brought against him in Pakistan, including for allegedly sheltering terrorists, but the Tribunal does not accept that this resulted in the applicants being seriously harmed in the years they lived alone in Pakistan. The Tribunal is not satisfied that their connections to [Mr A] will result in any future serious harm.
[7] DFAT Country Information Report, Pakistan, 20 February 2019
While the applicants’ close family members may have been known for their MQM affiliations in Karachi, they are now either deceased or left the country in the nineties. If their brother/son’s ongoing affiliation with the London group abroad is significant to either MQM members in Pakistan or the Rangers it stands to reason that they would be aware he is living outside of the country. Therefore the Tribunal considers there would be no need to harass and threaten the applicants’ over his whereabouts. In any event, the Tribunal has concluded and finds it significant, that the family’s affiliations with the MQM has not resulted in the applicants’ being seriously harmed in the past and the Tribunal can see no reason why they would be harmed in future for this reason. Relevantly, 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.
For these reasons, the Tribunal is not satisfied that there is a real chance the applicants will be seriously harmed, including the first named applicant being ‘dishonoured’, by MQM members or other political or criminal groups or the Rangers or any other state agency if they return to Karachi now or in the reasonably foreseeable future for reason of their links to the MQM London group.
Fear of harm as single women living alone in Karachi
The applicants’ claim that they are living alone in Karachi with nobody to protect them and they feel unsafe. A submission to the Tribunal references Amnesty International reporting which indicates the rise of violence against women, in acts of rape, sodomy, domestic violence and kidnappings. It is also claimed that there is no safety in Pakistan as anarchy and restlessness is on the rise and the state does not have enough resources to cope with all the problems.
The Tribunal accepts the applicants were living alone in Karachi prior to coming to Australia and that they have no remaining close relatives in Pakistan. During the hearing the Tribunal asked the applicants whether they have ever personally experienced harm in the past on account of their gender and/or because they are women living alone. The first named applicant referred to the past harm she experienced at the hands of those who attempted to extort money from her. She repeated her fears that either MQM members or Rangers would resume this behaviour. For the above reasons the Tribunal does not accept this. When asked to speak about her experience living as a woman in Pakistan more generally, the first named applicant said that snatching and kidnappings can sometimes occur but normally women can walk around without being touched or harassed on the street. Similarly, the second named applicant stated she has no rights as a woman in Pakistan, but when questioned further about this she said that other than the harassment they experienced in their home from people trying to extort money from them, nothing else had happened to them.
According to DFAT[8] observation of the purdah (literally ‘curtain’, a practice of segregating women from unrelated men) restricts women’s personal, social and economic activities outside the home. Many women in Pakistan live separately from men, particularly from men outside their families, and face significant cultural and legal barriers to access basic rights, freedom and protection. While many women participate actively in society in large urban centres such as Lahore, Karachi or in Islamabad, conservative societies outside urban centres observe purdah rigorously. This has practical implications for travel beyond the home, including for health services or to obtain humanitarian support during conflict. DFAT goes on to state that provincial governments implemented some measures in 2017 and 2018 to benefit women but that overall implementation of gender-based legislations lags and the HRCP reported little substantive progress in 2017 on the rights of women and girls, particularly for females living in rural areas or settlements, those from religious minority or lesbian, gay, bisexual, transgender and intersex communities and those living with a disability. DFAT also reports that women and girls in Pakistan are subject to rights based violations such as, but not limited to, gender based violence including (so called) honour killings and acid attacks, cruel, inhumane and degrading treatment by traditional justice systems called jirgas, early and forced marriage. The HRCP 2017 annual report notes an increase in reported violence against women and girls in 2017 compared to 2016. It is reported that police lack capacity to process cases and handle evidence in cases of rape and domestic violence. Women face significant economic barriers to leaving the family, and often need assistance with shelter and livelihoods. DFAT assesses that women and girls who are not from wealthy and prominent families face a high level of official discrimination in the form of a lack of legislative protection against societal violence and ineffective enforcement of laws that exist. Women face significant legal discrimination on issues such as inheritance, property rights, family law and civil and traditional judicial processes.
[8] DFAT Country Information Report, Pakistan, 20 February 2019
Notwithstanding the above, on the available evidence the applicants’ father and husband died in 2004 and thereafter they lived alone in Karachi until they departed Pakistan eleven years later in 2015. Other than the claimed past harm which the Tribunal rejects, with the exception of some extortion attempts on their business, neither of the applicants have claimed any past harm on account of being women or single women living alone in Karachi. Neither did they articulate any specific fears about returning to Karachi for this reason alone.
On the first named applicant’s evidence, she was living in Karachi, obtained a [qualification] and managed to work in a manager role for about five years prior to and up to her departure from Pakistan. This experience appears to accord with DFAT’s reporting which indicates that despite reported problems many women participate actively in society in large urban centres. During the hearing the Tribunal discussed this advice with the first named applicant, including DFAT’s assessment that women in conservative societies outside urban centres are more likely to encounter problems. She agreed with this assessment and stated that other than the matters claimed she did not experience other problems living in Karachi.
Regarding the security situation in general, DFAT reports that the Pakistan armed forces have launched several security operations in Pakistan aimed at counteracting terrorism and the volatile security environment. Similarly security forces have sought to tackle violent and organised crime across the country particularly in large urban centres such as Karachi. The Rangers and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. DFAT understands that serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly as a result of a series of security operations.
In view of the above country information and the applicants’ reported experiences and assessment of the situation, the Tribunal is not satisfied that there is sufficient information in their particular circumstances to conclude that there is a real chance they will suffer serious harm on return to Karachi purely for reason of being women, or single women living alone.
Fear of having no means to live in Karachi
The applicants’ claim that with the destruction of the marriage hall and the ransacking of their home everything they have in Karachi is lost. They claim they will have no means to live in Karachi if they return and nobody to help them to secure accommodation. The first named applicant also stated that there will be nobody to take care of her mother if she goes to work. The Tribunal acknowledges that the second named applicant is elderly and has some health problems including suffering from anxiety.
The Tribunal accepts that if the applicants return to Karachi they will no longer be able to rely on income from the family’s marriage hall business. However, the first named applicant worked in a managerial role in the past for a significant period of time and there is nothing before the Tribunal to indicate she could not obtain similar or related work if she returns to Karachi. Further, in the past, she and her mother received financial support from their brother/son in Australia and there is also no suggestion that he would withdraw his support if they return to Karachi.
As to securing accommodation on return to Karachi the Tribunal is not persuaded on the oral evidence of the applicants’ and their brother/son’s testimony that they would be unable to resume living in their former home. Even if the house has been broken into and some of their possessions stolen in their absence the evidence is that the house remains standing and in their legal possession. In his testimony the applicant’s brother told the Tribunal that he has heard from his friend that the house is “a little bit damaged”. This does not suggest to the Tribunal that the house is unliveable or that it could not be returned to liveable condition.
While the Tribunal acknowledges and sympathises with the fact the second named applicant is not in the best of health there is no medical evidence before the Tribunal to indicate that she cannot return to Karachi and resume living with her daughter as they did for many years prior to coming to Australia.
For these reasons the Tribunal is not satisfied that the applicants will have no means of living in Karachi if they return now or in the reasonably foreseeable future. The Tribunal considers there is not a real chance that they will suffer serious harm if they return to Karachi for this reason.
Having carefully considered the claims and evidence, both individually and cumulatively, and for all the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicants do 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. On the basis of the above findings the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk they will suffer significant harm. Therefore the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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 1446

11 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction