1609514 (Refugee)
[2018] AATA 5668
•21 December 2018
1609514 (Refugee) [2018] AATA 5668 (21 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1609514
COUNTRY OF REFERENCE: Pakistan
MEMBER:Jason Pennell
DATE:21 December 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 21 December 2018 at 1.05pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – discrimination as Mohajir – supporters of the Muttahidda Qaumi Movement (MQM) – threatened by the Taliban – threatened by security forces – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91
Migration Regulation 1994, Schedule 2
CASES
Chan V MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZTGM v MIBP [2017] HCA 34
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 June 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 7 July 2014. The delegate refused to grant the visa on the basis that The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.
3.The applicant appeared before the Tribunal on 5 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
7.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
8.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
9.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
10.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
11.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[1] s.91R(1)(b)
[2] s.91R(1)(c) of the Act
12.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
13.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]
[3] s.91R(1)(a) of the Act
14.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
15.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
16.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
17.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
18.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]
[4] s.5(1) of the Act
[5] s.36(2B) of the Act
Section 499 Ministerial Direction
19.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants’ history/migration history
20.The delegate’s decision dated 6 June 2016[6] notes that the applicant arrived in Australia [in] March 2011 as a holder of a [temporary] Visa. The applicant has departed Australia on two occasions remaining overseas for approximately two months on each occasion from [January] 2012 to [February] 2012 and again for [August] 2013 to [October] 2013. The applicant’s [visa] ceased on 27 December 2014. The applicant applied for a protection visa for a protection visa on 7 July 2014 in association with which he was granted a bridging visa.
[6] Opcit @ p.2
Country of Reference
21.The Department's file [deleted] (‘the Department File’) contains a photocopy of the applicant's passport issued by the Islamic Republic of Pakistan and expiring [in] 2017 and his Pakistani ID card number [number deleted].[7] The applicant’s passport states that was born [in] Hyderabad, Pakistan. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.
[7] Departmental file [deleted].
22.By his protection application the applicant claims that he can read write and speak Urdu and English.[8] In addition, he states that he is a Sunni Muslim and that his religion is Islam.[9]
[8] Op Cit f28
[9] ibid
23.Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and the applicants protection claim will be assessed against Pakistan as the country of reference and 'receiving country' respectively.
24.The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s protection claims
25.The applicant’s detailed written claims are contained in a written statement dated 3 July 2014[10] and Statutory Declaration dated 23 August 2018.[11] The applicants written claims were summarised in the delegate’s decision as follows:
·The applicant is a Sunni Muslim man born in Hyderabad in the Sindh province of Pakistan.
·The applicant and his family were all supporters of the Muttahidda Qaumi Movement (MQM) a political party which represents mohajirs (people who migrated to Pakistan from India). The applicant was an active participant in campaigning for the MQM.
·The applicant’s father was threatened by the Taliban in 2010. They told him to withdraw his support for the MQM.
·After coming to Australia in 2011 the applicant returned to Pakistan on 2012 and while there he took part in a protest against the Taliban along with his brothers. Shortly afterwards his brother received a threatening letter for the Taliban.
·In 2013 the applicant’s brother received a threatening call for the Taliban who told him to pay or otherwise his entire family would be killed. When the applicant ravelled back to Pakistan later in 2013 he was also called and asked to pay [amount deleted]. His house was shot at by gunmen several weeks later. He was also shot at by unknown men on a motorbike.
·The applicant also fears the Pakistan security forces that have recently started abducting MQM members throughout Sindh province.
·The applicant fears that he will be killed by the Taliban or the Pakistani security forces if he is to return to Pakistan due to his family’s support for the MQM.
[10] [Deleted].
[11] AAT File No1609514 f82-f87
26.In support of his claim the applicant provided the department the following documents:
(a)Certified copy of a police report lodged by the applicant and his brother together with an English translation [dated] September 2013.[12]
[12] [Deleted]
(b)Certified copy of a police report lodged by the applicant and his brother together with an English translation [dated] June 2014.[13]
[13] [Deleted]
(c)Certified copies of photos [dated] April 2015 of the applicant and his brother captured in MQM rallies in Karachi and Hyderabad.[14]
[14] [Deleted]
(d)Certified copy of an Agreement of Sale of the business known as [business name deleted] dated [May] 2014.[15]
[15] [Deleted]
(e)Certified copy of Agreement of Sale of the property [for] the [amount] dated [in] March 2014.[16]
[16] [Deleted]
(f)Copy of statement by [Mr A] dated [August] 2018.[17]
[17] AAT File No1609514 f96
(g)Copy of national identity card for [Mr A] expiry dated [in] 2026.[18]
[18] AAT File No1609514 f94-f96
(h)Copy of passport for [Mr A].[19]
(i)National Police Certificate [dated] March 2015[20]
(j)Copy of the applicant’s passport.[21]
(k)Copy of the applicants ID card.[22]
(l)[A] report [dated] May 2017.[23]
(m)Statement dated 14 August 2016.[24]
(n)Statements for Australian Taxation Office.[25]
(o)[Super] letter [dated] August 2011.[26]
(p)Applicant’s submissions dated 31 August 2018. [27]
(q)Copy of article dated 16 March 2018 entitled ‘Altaf Hussain to UN: Hold Pakistan accountable for war crimes, ethnic cleansing, rights violations.’[28]
[19] AAT File No1609514 f91-f93
[20] [Deleted]
[21] [Deleted]
[22] [Deleted]
[23] AAT File No1609514 f76
[24] AAT File No1609514 f77
[25] AAT File No1609514 f78-83
[26] AAT File No1609514 f76
[27] AAT File No1609514 f65-f75
[28] AAT File No1609514 f98
The relevant time for determination
27.The relevant date at which to assess an applicant’s claims to refugee status is the time that the decision is made, and not the time the applicant left his or her country or the time that the application is lodged.[29]
[29] MIEA v Singh (1997) 72 FCR 288.
COUNTRY INFORMATION
28.In considering the applicants claim the Tribunal has considered the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 1 September 2017 (the DFAT Report’). The DFAT reports that:
Security Situation[30]
[30] DFAT Report dated 1 September 2017 @ p.8
2.30Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Sindh province is also relatively free from major terrorist activity outside of Karachi, although rural Sindh has a high incidence of crime and kidnapping and some large-scale terrorist attacks have occurred in rural Sindh. Gilgit-Baltistan tends to experience less sectarian violence, in part because of its relatively sparse population and mountainous terrain, and its status as the only Shi’a-majority area in Pakistan. In contrast, Balochistan, Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence.
2.31In June 2014, the Pakistan Armed Forces launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA , including the Tehreek-e Taliban Pakistan (the Pakistani Taliban or TTP), and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province, with smaller, intelligence-based operations taking place across the country. The term Zarb-e-Azb has also expanded to refer to operations by the army and the Rangers, a paramilitary security force, in Balochistan and Karachi against various other terrorist, separatist and criminal groups. The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.
2.32In December 2014, an attack on a school in Peshawar resulted in the deaths of 140 people, including 132 children. The attack led to the government introducing a National Action Plan (NAP), which, along with Operation Zarb-e-Azb, forms a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Among other measures, the NAP: ended Pakistan’s unofficial moratorium on the death penalty; established military courts to try suspected militants; clamped down on sources of finance for militant organisations; took measures to restrict hate speech; and committed to implementing administrative and development policy reforms, particularly in the FATA.
2.33Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties.
2.34The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations. However, militant groups remain active across Pakistan, despite their more limited access to former safe-havens in Khyber Pakhtunkhwa and North Waziristan. These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.
2.35Operation Zarb-e-Azb initially led to the displacement of around 1.6 million civilians, primarily in FATA and Khyber Pakhtunkhwa. According to the UN Refugee Agency (UNHCR), there are around 750,000 registered internally displaced persons (IDPs) in Pakistan, the vast majority of whom are living in host communities (less than one per cent are living in camps). DFAT understands that large numbers of IDPs have returned to their villages following the improvements to the security situation, although there are credible reports of houses and cropland having been destroyed in the fighting. Operation Zarb-e-Azb continues to restrict people’s movement in and around the FATA and western Khyber Pakhtunkhwa. While designed to hamper the mobility of militants, it also has a significant impact on the ability of the local populations to access services, livelihoods and markets.
2.36Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy—particularly weak judicial and law enforcement institutions and economic under-development—have not been addressed, and speculated that violence would likely increase again after a period of relative calm.
2.37DFAT notes that there has been an increase in the frequency and severity of terrorist attacks across Pakistan since late 2016. Between 13 and 16 February 2017, a series of separate incidents in Lahore (Punjab province), Quetta (Balochistan province), Peshawar (Khyber Pakhtunkhwa province) and Sehwan (Sindh province) killed at least 100 people and left several hundred others injured. In response to these attacks, on 22 February, 2017, the Pakistan Army announced Operation Radd-ul-Fasaad (the successor to Operation Zarb-e-Azb), a nation-wide anti-terrorism operation in accordance with the NAP, which has expanded the role of the army in counter-terrorism operations in Punjab province. Attacks continue to occur, such as a suicide attack targeting police in Lahore on 24 July 2017, which killed 26 people and injured more than 50 others.
2.38As well as targeting insurgent and sectarian groups, government and military crackdowns have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. The Rangers, a paramilitary security force, have arrested large numbers of people allegedly involved in kidnapping, robbery and extortion in Karachi. Included among those arrested and detained are several thousand members of the Muttahida Qaumi Movement (MQM; see Political Opinion (Actual or imputed), below). Most of those arrested are detained for a period of around 90 days, before being released. There are widespread accusations of torture, as well as reports of dozens of extrajudicial killings and enforced disappearances. While reliable data are unavailable, DFAT understands that serious crime across Pakistan has reduced significantly since the commencement of Operation Zarb-e-Azb and the NAP, including in Karachi….
Militant Groups[31]
[31] DFAT Report dated 1 September 2017 @ p.10
2.39Militant groups such as Tehreek-e Taliban Pakistan (TTP) and Lashkar-e Jhangvi (LeJ) continue to operate across Pakistan despite government and military operations disrupting their activities. The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into a number of separate groups following the beginning of the crackdown. In early 2017, a number of these splinter groups re-joined the TTP, however, or pledged support for its leader, Mullah Fazlullah. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned.
2.40The terrorist group known as Islamic State is active in Pakistan, but it is unclear how much direct influence it wields. On 8 August 2016, around 70 civilians—predominantly from the legal community—died in a suicide bombing in the emergency ward of a Quetta hospital. Large numbers of people had gathered at the hospital to mourn the death of Balochistan Bar Association president Bilal Anwar Kasi, who had been murdered earlier that day in an apparent targeted killing. Islamic State and a faction of the TTP both claimed responsibility for the bombing. Islamic State and LeJ al-Alami both claimed responsibility for an attack in October 2016 on a police training college in Quetta, Balochistan, in which 59 people died. Islamic State has claimed responsibility for other attacks, including two on Sufi shrines: one in south-west Balochistan on 12 November 2016, which killed 52 people and injured around 100; and a second in Sindh province in February 2017, which killed at least 88 people and injured several hundred others. It is unclear the extent to which Islamic State is directly funding or commanding violent attacks in Pakistan, or whether the attacks claimed by Islamic State were conducted by other militant groups motivated by shared ideological goals.
2.41In addition to insurgent terrorist groups, Pakistan is subject to violent attacks from militant separatist organisations, most prominently in Balochistan province. On 6 October 2016 Baloch separatists caused two explosions on a passenger train in south-west Balochistan. The Baloch Liberation Army (BLA) claimed responsibility for the attack, which targeted military personnel on the train. The attack killed six people. Baloch separatist groups have been known to attack military and economic infrastructure, including the overland infrastructure network built under the China-Pakistan Economic Corridor agreements. Violent attacks by separatist groups have become less frequent since the beginning of Operation Zarb-e-Azb and the National Action Plan, although they continue to occur. On 13 May 2017 suspected BLA militants reportedly killed 10 labourers and injured two others on a China-Pakistan Economic Corridor construction site in Gwadar.
Mutahidda Qaumi Movement (MQM)
3.100The MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and their descendants) from India. As well as Karachi, the MQM has power bases in Hyderabad and Nawabshah districts of Sindh province. Because of the concentration of its membership in these areas, the MQM exercises considerable political influence in Sindh political affairs. The MQM currently holds 50 seats in the 167-seat Provincial Assembly of Sindh.
3.101The MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindhi-backed Pakistan People’s Party (PPP) and Pashtun parties. In 2013, the paramilitary Rangers commenced operations in Karachi, which have continued under the banners of Operation Zarb-e-Azb and the National Action Plan. These operations have significantly reduced the incidence of political violence in Karachi. The Rangers have arrested several hundred MQM members in connection to violence and extortion, and dozens more MQM members have been killed in these operations. According to MQM, more than 140 of their members have been subjected to enforced disappearances in recent years. In August 2016, the Rangers announced that they had apprehended 848 target killers affiliated with MQM’s ‘militant wings’ since September 2013. The Rangers claimed that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. The MQM suspects have reportedly confessed to being involved in 5,863 incidents of targeted killings.
3.102Militant groups such as the TTP have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years.
3.103In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address via telephone from London to a group of MQM supporters on a hunger strike in Karachi. In this address, Altaf reportedly made remarks that were anti-Pakistan, and urged MQM supporters to attack media outlets that he felt were not giving MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. One person was killed and several others injured in the attack and the subsequent violent clashes with police. Rangers subsequently sealed MQM’s offices in Karachi, launched a treason case against Altaf and arrested five other MQM leaders in Karachi.
3.104The anti-Pakistan rhetoric in Altaf’s speech also led to some senior MQM leaders in Pakistan announcing that the party would no longer answer to Altaf and would be run exclusively from Pakistan. The party effectively split into two factions; one that remained loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based officials (MQM-Pakistan). It is unclear how permanent this split in the party will be. The Pakistan government has formally recognised MQM-Pakistan, and its leader Farooq Sattar.
3.105DFAT assesses 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 further assesses that MQM members who are associated with (or perceived to be associated with) political violence or criminal activities face a moderate risk of violence from security forces.
Police[32]
[32] DFAT report @ p.36
29.In addition, in relation to the police the DFAT report states that Pakistan’s provinces and autonomous regions are directly responsible for law and order. That is the Police force is generally supervised at the provincial level. According to the International Crisis Group, the number of police in Pakistan increased from 220,000 to 430,000 over the decade to 2015.
30.The effectiveness of individual police forces in Pakistan and the challenges faced by them vary. Generally, police capacity in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors and the judiciary. There is a widespread perception across the community of high levels of police corruption.
Prevalence of Document Fraud
31.The DFAT report advises that document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as National Database and Registration Authority (‘NADRA’). It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[33]
[33] DFAT report @ p.42
32.More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common. People have also been known to pay news organisations to publish false stories in newspapers.[34]
[34] Ibid
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s statement
33.The applicants personal history is set out in his statements made 23 August 2014 and 3 July 2014 which outlines his claim for protection.
34.The applicant states that he is a Sunni Muslim and was born on [birthdate deleted] in Hyderabad in the Sindh Provence of Pakistan. The applicant has [brothers] and [sisters]. His mother and [most] of his [siblings]’ continue to live in Pakistan. His father passed away in 2010 and his brother [Mr A] lives [Country 1].
35.The applicant’s evidence was that his [father] and [mother] originated from India and made the journey to Pakistan during the partition era. The applicant’s father and mother fled from India for Pakistan to escape persecution as Muslims. The applicant claims that his father worked as a [occupation] and said that upon their arrival in Pakistan, as a Mohajir,[35] he had limited opportunities for promotion. The applicant’s evidence was that his [father] suffered many forms of discrimination at his work. As a result the applicant’s father joined the MQM. The applicant says that his father’s dedication to the party became and interest for the whole family who all became active members of the MQM. In his statutory declaration the applicant states:
‘My father found a job as a [occupation] but he did not have any chance of a real promotion and was given only menial tasks which frustrated him. My mother said that she remembers that they moved to a lot of different areas for his work and he only received a small promotion before he [retired]. He saw politics as the only way to change the discrimination against Mohajirs and joined the MQM. Politics was always a topic of conversation in my family and I grew up hearing about the MQM. Long before I was old enough to become a member of the party, I went with my father and my brothers to meetings.’ [36]
[35] A Mohajir is a person who has traveled to Pakistan from India.
[36] Applicants stsutory Declaration dated 23 August 2018 @ para 12.
36.The applicant’s evidence was that he joined the party at the age of [age deleted]. He states that he was not a member of the MQM as a student as they were not active in his [school] in Hyderabad. However, once he was old enough he became an active member of the party under the leadership of Mr Asim Zaidi. The applicant’s evidence was that while he was not an ‘office bearer’ of the MQM he was an ‘active worker’ within the party. He said that he reported to Mr Zaidi who directed him to do tasks such as putting up posters, arranging chairs and setting up stages for MQM events, briefing the press and speaking to members and encouraging them to attend meetings.[37] Mr Zaidi was shot in January 2011. The applicant says that he believes that the Taliban were responsible for his death in an attempt to decrease support for the MQM by trying to work systematically against his unit down the chain of command. However, a newspaper article that reported on the shooting of Mr Zaid, while confirming that he was an MQM worker, does not identify those responsible for his shooting.[38]
[37] Applicants statutory deceleration dated 23 August 2018 @ para 16
[38] Violence in Karachi and Hyderabad, Dawn, January 08, 2011, applicant’s evidence was that his brother, [Mr A], was also a worker within the party. [Mr A] was a [occupation]. The applicant said that in or about 1992-93 his brother was involved in violent fighting on behalf of the MQM.[39] The applicant said that there were a lot of street clashes with other groups including the Sindhis and Pashtuns. The applicant says that through his [contacts] his father discovered that [Mr A] was on a ‘hot list’ and arranged for him to travel to [Country] in or about 1993.
[39] Applicants statutory deceleration dated 23 August 2018 @ para 17
38.Despite the threats against his brother the applicant’s family remained involved in the MQM. He said that they all experienced discrimination as Mohajirs. The applicant said that under the quota system it was difficult for Mohajirs to get a place in university or a job with any promise of promotion. The applicant believed that it was his and his family’s involvement in the MQM that led to them being the subject of co-ordinated attacks against them.
39.The applicants claim that his family members experienced discrimination as Mohajirs is not supported by the country information.[40] There is no mention of the Mohajirs being discriminated against in relation to obtaining a place at university or a job. In it is reported that because of the concentration of the MQM’s membership in the Sindh province, the MQM exercises considerable political influence. As such, based on the country information available the Tribunal finds that his family did not suffer discrimination as claimed. Accordingly, the Tribunal finds that the discrimination claimed by the applicant suffered by him and his family does not constitute serious harm as claimed.
[40] DFAT County Information Report Pakistan 1 September 2017 @ p.26
40.The applicant confirmed that he returned to Pakistan in January 2012 and August 2013. He said that on his first trip back to Pakistan he realised that the Taliban’s influence in the Sindh had increased. He said that his brothers and other party members has arranged for a protest demanding that the government end the Taliban’s rise to power in Karachi. The applicant said that he took part in the protest.[41] The applicant says that his brother, [Mr B], received a threatening letter from the Taliban ordering him to stop his activities or that the consequences for the family would be harsh.
[41] Op Cit @ para 22
41.The applicant says that on his second trip to Pakistan he received a call on his mobile phone from a person who identified themselves as ‘Taliban.’ The applicant’s evidence was that the person on the phone spoke Urdu with a Pashtun accent.[42] The applicant’s evidence was that he was told that they knew he was living in Australia, he has brother living in [Country 1] and that his family were workers for the MQM. The applicant said that he was accused of having abandoned his principles by going to a western country and taking on liberal values. The person then demanded [amount deleted] and said that if his family did not pay they would be killed. The applicant said that he refused to pay the money upon which the man on the phone became very angry and threatened to kill him.[43]
[42] Op Cit @ para 23
[43] Ibid
42.The applicant told his family about the phone call and his brother, [Mr B] said that he had also received a similar call from the Taliban in February 2013. The applicant claims that [in] September 2013 at [time deleted] shots were fired at his family’s home by two men on a motorbike. His evidence was that upon hearing the bullets the applicant and his brother rushed outside to find three bullet holes in the wall of their house. The applicant says his neighbour had also rushed outside at the sound of the shots and saw the men on the motorbike. The applicant said that he went to police station in [Location 1] with his brother and neighbour to make a complaint but said the police did not take the report of the incident seriously.[44]
[44] Op Cit @ para 28
43.The applicant says that [in] September 2013 he was returning home with his brother, [Mr C], on the same motorbike. They pulled up at an [intersection]. They noticed two people on another bike watching them intently. He said that they were still on edge from the indecent a few days before. He said that they became anxious as they were wearing Shalwar Qameez and they had their faces covered. They began to follow the applicant and his brother through the traffic. They heard a shot fire but no one was hit. The applicant says that he and his brother were able to manoeuvre through the side streets and get away. He said the incident had them feeling ‘very, very scared.’[45]
[45] OpCit @ para 29.
44.The applicant returned to Australia [in] October 2013.
45.The applicant says that [in] June 2014 his brothers [Mr B] and [Mr C] were shot at when standing outside their house at about [time deleted] by two gunmen on a motorbike. He said that they collected their own weapons to return fire but the gunmen had gone. They made a report to the police but were not taken seriously.
46.As a result the applicant says that his family have sold their house and business and gone into hiding. He says that his brother have gone to different areas of [Pakistan].[46]
[46] Op Cit @ para 33
47.The applicant claims that since making his application for a protection visa an additional concern has arisen involving the Pakistan Rangers who the applicant claims are conducting anti MQM operations in Karachi and Hyderabad. He claims that as a result of a raid on the MQM office in Hyderabad [in] August 2016 the Pakistan Rangers took a letter that drafted for the purposes of the applicant’s protections claims in Australia that confirms he is a member and worker of the MQM and that as a result he had become a target of the Taliban. The applicant says that a copy of the letter was kept at the MQM headquarters and as a result of the raid the Pakistan Rangers now have a copy of the letter. The applicant says that the Rangers have sealed the Hyderabad Zone and demolished all MQM unit offices and sectors in Karachi and Hyderabad. The applicant claims that if he is to return to Pakistan he will be in danger from the Pakistan Rangers as they are actively suppressing MQM workers.[47]
Accepted Facts
[47] Op Cit @ para 34 & 36
48.Based on the applicant’s evidence to the Tribunal and the information provided in support of his protection visa application the Tribunal finds that:
(a)the applicant was born on [birth date deleted] in Hyderabad in the Sindh Provence of Pakistan.
(b)the applicant is a Sunni Muslim.
(c)the applicant has [brothers] and [sisters].
(d)the applicant’s father passed away in 2010.
(e)the applicant’s mother and [most] of his [siblings]’ continue to live in Pakistan.
(f)the applicant’s [Mr A] lives [Country 1].
(g)the applicant is a member of the MQM.
Applicant’s claim a refugee
Credibility.
49.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
50.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[48]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[49]
[48] s.5AAA Migration Act 1958.
[49] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
51.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[50] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[50] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
52.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[51] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[51] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
53.In this case the applicant claims that as a result of his membership with the MQM he fears harm from both the Taliban and the Pakistan Rangers in the event that he returns to Pakistan.
Harm by the Taliban
54.In Chan v MIEA[52] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. Justice Dawson stated in Chan’s case:
The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.[53]
[52] (1989) 169 CLR 379 at 396.
[53] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
55.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed by the Taliban in the event he is returned to Pakistan.
56.To hold a ‘well found fear of persecution’ on an objective basis the applicant’s claims must be more than merely plausible or credible. In Chan v MIEA, Dawson J [54]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[54] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
57.In MIEA v Guo, the Court stated that: [55]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[55] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
58.In this case, the applicant’s fear of persecution by the Taliban appears to be based more on his own speculation rather than as a result of any direct contact or engagement with the Taliban. The applicant gave no evidence of having been in direct contact with the Taliban. The applicant’s said that prior to 2012 he had no fear of returning to Pakistan. However, in or about 2012 his brother, [Mr B], received a threatening letter from the Taliban ordering him to stop his activities otherwise it threatened ‘harsh consequences for his family.’ However, save from the applicant’s own oral evidence, there was no independent evidence that his brother had received a letter from the Taliban as claimed. The applicant did not provide a copy of the letter nor any evidence from his brother confirming that he had received the letter and its contents. As a result the tribunal has reservations about the existence of the letter as claimed. In any event, despite having received such a threatening letter the applicant’s brother continued his involvement in the MQM without any incident occurring to either himself or his family. Therefore, despite the Tribunal reservations about the existence of the letter, as a result of the applicant’s brother continuing his involvement with the MQM without him or his family being threatened, the Tribunal finds that applicant’s fear of persecution based on the letter is without foundation.
59.The applicant claims that on his second return trip to Pakistan in or about September 2013 he received a threatening phone call from the Taliban demanding money. Save that the applicant says that the person on the telephone spoke Urdu with a Pashtun accent, there was no evidence that he was from the Taliban. Even if the Tribunal is to accept that the threat was made by a member of the Taliban as claimed, which it does not, then based on the applicants own evidence, there appears to be no real chance of serious harm due to the fact that the applicants brother had received a similar phone call in February 2013 (7 months prior) from which there had been no repercussions.
60.The applicant claims that [in] September 2013 at [time deleted] shots were fired at his family’s home by two men on a motorbike. Nobody witnessed the alleged shooting. The applicant says that he heard the shots and ran outside to investigate. He said that three of the four shots fired hit his family’s house. He was informed by his neighbour that he had also heard the shots and ran outside to see what had happened. The neighbour said to the applicant that when he got outside he saw two men on a motorbike in traditional dress driving away from the scene. The applicant was not able to say if the two men on the motorbike were responsible or even if they were members of the Taliban. In fact that applicant, save from assuming that the men on the motorbike were members of the Taliban, was not able to identify any person responsible for the shooting.
61.The applicant says that after the shooting he made a report at a police station in [Location 1] but could not remember which station he attended. The Tribunal would have expected that in circumstances where a person is in familiar surroundings (i.e. his family’s home and neighbourhood) and experiences a traumatic event, such as a shooting as described by the applicant, that they would not only know where the closest police station was located but would be able to recall which police station they attended to make a report. In this case while the applicant says he made a report a police station in [Location 1] he was unable to tell the Tribunal which one he attended.
62.The applicant provided First Information Reports (FIR’s) dated [in] September 2013 and [in] June 2014. The country information indicates that such documents cannot be relied upon as authentic sources. The DFAT report notes that it is relatively simple to produce fraudulent FIRs’ as they use standard forms with the relevant information written in by hand. In addition it is reported that the police in Pakistan accept bribes to verify fraudulent FIRs. As a result the Tribunal places no weight on the FIR’s provided by the applicant.
63.However, the FIR dated [in] September 2013 refers to the shooting at the applicant family home. It states that a firing ‘was made on our house but we did not take any notice of this incident.’ It therefore appears from this statement that the applicant and his family did not fear any harm as claimed by reason of the alleged shooting on the applicant’s family home.
64.The applicant says that [in] September 2013 an incident occurred when the applicant and his brother, [Mr C] were travelling home on a motorbike. He said that two men in traditional dress and with their faces covered were watching them intently and began to follow them. The applicant says that he and his brother were able to manoeuvre through the side streets and get away. He said he heard a shot fire but no one was hit. The Tribunal finds it incredible that a shot was fired on a busy street without any perceived repercussions save for the applicant to say that he was not hit. The applicant was not able to say for certain if he was targeted by the men, he could not say for certain who took the shot and he could not the identity of the two men. The Tribunal notes that the incident is reported in the FIR dated [in] September 2013 in broad and vague detail, merely stating that ‘2 unknown armed motorcyclist made straight firing in attempt to kill us.’ It fails to include any details of the incident that would be expected for the police to be able to conduct an investigation into the matter.
65.As such, due to the vague nature of the applicant’s evidence, the lack of detail in the FIR and the lack of any evidence to support his claim, the Tribunal does not accept that the events of [September] 2018 and [September] 2013 occurred as claimed. While the DFAT Report notes that Militant groups such as the Taliban have periodically attacked MQM members because of their secular ideology these attacks have been much less frequent in recent years. However, in this case that applicant evidence to the Tribunal in relation to each event was so vague and lacking in detail that the Tribunal cannot be satisfied that they actually occurred as claimed. Accordingly the Tribunal does not accept the applicant evidence that the events of [September] 2018 and [September] 2013 occurred as claimed.
66.In any event, even if the Tribunal was to accept that events of [September] 2018 and [September] 2013 occurred as claimed (which it specifically does not) it appears that based they are merely a random events rather than any premeditated course of conduct by the Taliban designed to harass, intimidate and persecute the applicant and his family.
67.Finally, the applicant claims that [June] 2014 at [time deleted] his brothers, [Mr C] and [Mr B] were shot at by two gunmen when standing outside [their] house.[56] The applicant’s was in Australia at the time and therefore unable to provide any direct knowledge of the incident. No direct evidence of the incident was provided to the Tribunal other than a FIR dated [in] June 2014 by which it is said the applicant’s brothers reported the incident to the police. The FIR refers to the incident in the broadest of terms and fails to describe the events in any detail, including the identity of the gunmen, the direction from which the gunmen approached the applicant’s brothers and how many shot were fired. Therefore, based on the country information referred to above relating to the authenticity of documents in Pakistan, the vague nature of the applicants evidence and the applicants failure to provide any direct evidence of the incident, the Tribunal does not accept the applicant’s evidence in relation to the incident [in] June 2014.
[56] Op Cit @ paragraph 32.
68.In any event, even if the Tribunal was to accept that the incident [in] June 2014 occurred (which it specifically does not) it appears that based on the available country information it was a random event rather than any premeditated course of conduct by the Taliban designed to harass, intimidate and persecute the applicant and his family. While the applicant and his brothers may be members of the MQM, they do not hold significant positions within the organisation. It is not suggested that they hold high profile positions or that they are responsible for the organisation or strategic direction of the party. In addition, there was no evidence that the applicant or his brothers in India are involved in political violence and criminal activities that may bring them to the attention of the Taliban or others. As such, based on the country information, the Tribunal finds that there is no real risk that the applicant will be seriously harmed in the event he is returned to Pakistan by reason of the incident that is claimed to have occurred [in] June 2014.
69.Finally, the applicant supplied an Agreement for Sale dated [May] 2014 in relation to his family’s business (‘the business agreement’) and an Agreement for Sale in relation to his family’s home dated [March] 2014 (‘the house agreement’). The Tribunal notes that the purchaser listed in the business agreement appears to be a relative of the applicant having the same surname. Nevertheless, based on the country information concerning the authenticity of the documentation in Pakistan the Tribunal gives little weight to the agreements provided. In addition given that the Tribunal has found that there is no real chance the applicant will be seriously harmed on his return to Pakistan it does not accept that the applicant’s family has sold the house and business for the reasons claimed.
70.Therefore, based on the fact that the Tribunal does not accept the applicants evidence in relation to each of the events described, it finds that, on an objective basis, that there is no real chance of the applicant being seriously harmed as a result of his membership of the MQM if he is returned to Pakistan and as such the applicant does not have a ‘well-founded fear’ of returning to Pakistan.[57]
[57] Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429.
Harm by the Pakistan Rangers
71.The applicant claims that since making his application for a protection visa the Pakistan Ranger have become an addition concern to him. The Pakistan Rangers are a paramilitary law enforcement organization in Pakistan whose primary mission is to secure Pakistan's border with India together with other internal security operations and providing assistance to the police in maintaining law and order.[58] The applicant says that it is now ‘obvious’ that the Pakistan Rangers are conducting anti MQM operations in Karachi and Hyderabad.[59] He says that Pakistan Rangers have been deployed against MQM workers and are currently involved in action against the MQM. The applicant says that as a result of letter having been drafted by his local MQM office stating that he was a member of the MQM, a worker of the party and that he had become a target of the Taliban. As a result of a raid on the MQM headquarters the applicant fears that the Pakistan Rangers are in possession of the letter and are aware of his enrolment in the MQM. The applicant was not able to say with certain that the Pakistan Rangers had the letter but assumes it to be the case given their raid on the MQM office.
[58]Dawn News ‘Punjab withdraws Rangers from guard duties’ Mohammad Asghar December 17, 2015
[59] Applicant’s Statutory Declaration dated 23 August 2018 @ paragraph 34.
72.Assuming that the Pakistan Rangers are in possession of the letter, the Tribunal does not accept that there is a real chance the applicant will be harmed by reason of the Pakistan Rangers having knowledge that he is a member of the MQM. However, the country information does not support the applicants claim. While the country information confirms at the Pakistan Rangers have taken action against the MQM,[60] having arrested several hundred MQM members in connection to violence and extortion, it states that these operations have significantly reduced the incidence of political violence in Karachi. It states that MQM suspects have reportedly confessed to being involved in 5,863 incidents of targeted killings. The DFAT Report assesses that that risk of harm has been significantly reduced since security operations began in 2013 and that MQM members face only a low risk of violence from militant groups and criminal elements in Karachi.
[60]Rangers raid MQM HQ in Karachi, detain member of Rabita Committee; Dawn.com; Sohail Shabbir Updated March 11, 2015
73.There is no evidence that the Pakistan Rangers are supressing MQM workers as claimed by the applicant. Rather what the country information displays is that the Pakistan Rangers have taking action against those members of the MQM who have engaged in political violence and criminal activities. There is no evidence that the applicant has engaged in or is perceived to have engaged in such activities. As a result, the Tribunal finds that the applicant is not involved in, nor perceived to be involved in political violence or criminal activity. Nevertheless, the DFAT report assesses those MQM members who are associated with (or perceived to be associated with) political violence and criminal activities face only a moderate risk of violence from security forces. As such, for the country information the Tribunal finds that there is no real chance the applicant will be harmed by the Rangers by reason of his membership of the MQM.
74.The applicant provide a statement by his brother, [Mr A] dated [in] August 2018. The applicant’s evidence was that his brother was involved in ‘violent fighting on behalf of the MQM.’[61] As a result, he came to the attention of the police and fled to [Country 1] in 1992. [Mr A] states that workers of the MQM are being targeted every day and believes that if the applicant is returned to Pakistan he will be targeted by enforcement agencies due to his political affiliation. However, there is no evidence to suggest that the applicant is engaged in any political violence or criminal activities. Accordingly, based on the available country information and contrary to the applicant’s brother statement, the applicant will not be targeted by the authorities in the event he is return to Pakistan. Therefore, in circumstances where the applicant’s brother has not lived in Pakistan since 1993, was involved in political violence and criminal activities on behalf of the MQM, and where his evidence is contrary to the available country information, the Tribunal places no weight on [Mr A’s] statement.
[61] Applicants Statutory Declaration dated 23 August 2018 @ paragraph 17
75.As such, based on the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed by the Pakistan Rangers in the event he returns to Pakistan.
Harm by security forces.
76.The applicant claims that he fear being harmed by the Pakistan security forced who have recently started abducting MQM members throughout Sindh province. The applicant did not present any evidence in support of this claim. In addition, the Tribunal was not able to locate any country information that supported the applicants claim that members of the MQM have been abducted by the Pakistan security forces. However, the Tribunal notes that the country information available[62] concludes 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. In addition it notes that MQM members who are associated with (or perceived to be associated with) political violence or criminal activities face a moderate risk of violence from security forces. As referred to above there is no evidence that the applicant is associated or perceived to be associated with political violence or criminal activity by which he would face any risk of harm for the security forces. As such the tribunal finds that the applicant does not face a real chance of serious harm by reason from the Pakistan security forces as claimed.
Applicant’s Mental Health.
[62] DFAT Country Information report Pakistan 1 September 2017 p.27
77.Although not specifically raised in the applicant’s protection visa application, his statutory declaration dated 23 August 2018 or his submissions, the applicant has a potential claim of being harmed in the event he is returned to Pakistan by reason of his mental health.
78.The applicant provided a Medial Report dated [in] May 2017 [in] which he was diagnosed with a Major Depressive Disorder, Moderate with Moderate-Severe Anxious Distress. The report states that the applicant diagnoses indicated that his psychological level can be attributed to external stress. The [Report] concluded that the applicant will require ongoing therapy with his mental health condition.
79.While not specifically stating so the Tribunal assumes that impliedly the applicant claims he will not be able to receive psychiatric care in Pakistan and therefore will suffer harm. While, the Tribunal accepts that mental health care is not at a satisfactory level in Pakistan, care is available privately and via the public health system.[63] While the public hospital system is generally inadequate to meet the demands for mental health services,[64] health care delivery in Pakistan is predominately provided through the private system.[65] Nevertheless,
[63] Mental health: Priorities in Pakistan
[64] The Express Tribune, ‘Mental health care: Mind matters’ by Komal Anwar / Crative: Eesha Azam Published: May 24, 2015
[65] Journal of Pakistan Medical Association November 2008 Health care delivery in Karachi - The worst of both worlds: Up, close and personnel by Suhail Anwar Department of Surgery, Huddersfield Royal Infirmary, UK. Vol:68, No:12 December, 2018
80.The country information reports that the importance of mental health is becoming recognized in Pakistan.[66] Specifically, in Hyderabad the importance of mental hospitals is understood as many people are aware that mental health is important for a person’s overall physical health.[67] Mental hospitals in Hyderabad deal with the treatment of serious psychiatric diseases such as schizophrenia, clinical depression, bipolar disorder.[68] In addition, in other areas, such as Karachi, there are several large private hospitals which provide mental health services. These include the Aga Khan University Hospital (AKUH), which has a psychiatric ward for mental health patients. The AKUH has a psychiatry department which includes six full-time psychiatrists and two full-time psychologists, in addition to two part-time psychiatrists and one part-time psychologist.
[66] Dawn News, HYDERABAD: Awareness about mental health urged October 11, 2008,
[67] ibid
[68] Top Mental Health Hospitals in Dilsukh Nagar,Hyderabad...
81.Finally, several non-governmental organisations (NGOs) are actively providing care to mentally ill patients at subsidised rates or no cost at all. Pakistan Association for Mental Health (PAMH), established in 1966, set up a free depot line clinic in 2002 in Karachi, offering free of cost outpatient services, such as psychiatric consultation, psychotherapy and psychological assessment. Services are limited due to the number of psychiatrists, psychotherapists and available.
82.Karwan-e-Hayat[69] has a 100-bed inpatient hospital in Keamari, Karachi, which also has an outpatient department (OPD), pharmacy, rehabilitation services department and a separate ward for male and female patients, and a community psychiatry centre in Korangi, Karachi, which has an OPD, pharmacy and rehabilitation centre. They also run the Jami Clinic in Punjab Colony, Karachi, which includes an OPD and pharmacy. The NGO has been providing consultation, medicines, meals and rehabilitation services free of cost or at subsidized rates to more than 350,000 under-privileged mentally ill patients since 1983.[70]
[69] an organisation that provides psychiatric and rehabilitation services to the mentally ill.
[70] The Express Tribune, ‘Mental health care: Mind matters’ by Komal Anwar / Crative: Eesha Azam Published: May 24, 2015.
83.Therefore, while the Tribunal accepts that generally the medial resources are generally inadequate in Pakistan to meet the demand, it finds that the applicant would be able to access treatment for his mental health condition through the private health system or the various NGO’s that operate province of Sindh. Accordingly the Tribunal finds that there is not a real chance the applicant will be seriously harmed by reason of his mental condition as a result of his return to Pakistan.
84.The Tribunal therefore finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36 (2) (a) of the Act.
Complementary protection
85.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for these purposes.
86.The applicant claims that he satisfies the requirements under s.36 (2) (aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading and treatment or punishment. The applicant claims that he will be targeted and killed by the Taliban and/or the Pakistan Rangers in the event he returns to Pakistan. However, the Tribunal, for reasons set out above, has found that the applicant does not face a real chance of serious harm if he returns to Pakistan.
87.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[71] It therefore follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Pakistan as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
[71] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
Applicant’s Mental Health
88.Although not specifically raised in the applicant’s protection visa application, his statutory declaration dated 23 August 2018 or his submissions, the applicant has a potential claim of being harmed in the event he is returned to Pakistan by reason of his mental health.
89.The applicant provided the [Report] in which he was diagnosed with a Major Depressive Disorder, Moderate with Moderate-Severe Anxious Distress. The report states that the applicant diagnoses indicated that his psychological level can be attributed to external stress. It concluded that the applicant will require ongoing therapy with his mental health condition. While not specifically stating so the Tribunal assumes that impliedly the applicant claims he will not be able to receive psychiatric care in Pakistan and therefore will suffer harm. For the reason as stated above, the Tribunal accepts that mental health care is not at a satisfactory level in Pakistan, but finds that care is available via the public health system or privately and the various NGO’s that operate province of Sindh.[72]
[72] Mental health: Priorities in Pakistan
90.In any event the required intention to inflict the significant harm on the applicant is not present in this case. That is, the requisite intention by a perpetrator to engage in conduct that would bring about result adverse to the victim or where a perpetrator engages in conduct aware that the result adverse to the victim will occur in the ordinary course of events does not occur in this case.[73] As such the Tribunal finds that there is no real risk the applicant will suffer significant harm by reason of his mental condition in the event he is returned to Pakistan.
[73] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
91.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
92.Therefore, the Tribunal finds that there is not a real risk the applicant will suffer significant harm in Pakistan. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 he will suffer significant harm as required by s36(2)(aa).
93.The Tribunal therefore finds that Australia does not owed him any protection obligations pursuant to s.36 (2) (aa) of the Act, if he returns to Pakistan.
CONCLUSIONS
94.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.91R. Therefore, the applicant does not satisfy the criterion set out in s.36 (2) (a).
95.Having concluded that the applicant does not meet the refugee criterion in s.36 (2) (a), the Tribunal has considered the alternative criterion in s.36 (2) (aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa).
96.There is no suggestion that the applicant satisfies s.36 (2) on the basis of being a member of the same family unit as a person who satisfies s.36 (2) (a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36 (2).
DECISION
97.The Tribunal affirms the decision not to grant the applicant a protection visa
Jason Pennell
Member
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
0
10
0