1609636 (Refugee)

[2019] AATA 3832

1609636 (Refugee) [2019] AATA 3832 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609636

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Jason Pennell

DATE:29 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 29 March 2019 at 9.33am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Muttahidda Qaumi Movement – applicant fears persecution because he left MQM – medical conditions – no real risk of  serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
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 445
NACM v MIMIA (2003) 134 FCR 550
NAEU of 2002 v MIMIA [2002] FCAFC 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZANB v MIMIA [2004] FMCA 387  
SZTAL v MIBP (2016) 243 FCR 556

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

RELEVANT LAW

5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

8.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[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

11.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]

[3] s.91R(1)(a) of the Act

13.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

16.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[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

18.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 applicant’s history/migration history

19.The delegate’s decision dated 6 June 2016[6] notes that the applicant arrived in Australia on [in] April 2014 as the holder of a [temporary] visa. The applicant has departed Australia since his arrival for a period of [a number of] weeks from [October] 2015 to [December] 2015.  On 7 July 2014 the applicant made an application for a protection visa and was granted a bridging visa, on which he currently remains. 

[6] AAT File No 1609636 @ f8

Country of Reference

20.The Department's file ([number]) (‘the Department file’) contains a copy of the applicant's passport issued by the Islamic Republic of Pakistan and expiring on [in] 2015.[7] In addition, at the hearing the applicant provided the Tribunal with his current passport from the Islamic Republic of Pakistan expiring [in] 2020.[8] The applicant’s passport states that was born on [date] in Karachi, 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 ([number]) @ f[number].

[8] AAT File No 1609636 @ f58

21.By his protection application the applicant claims that he can read, write and speak Urdu and English. In addition, he states that he is a Sunni Muslim and that his religion is Islam.[9]

[9] Delegates decision dated 27 October 2016 @ p.1

22.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.

23.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

24.The applicant’s detailed written claims are on the Department file from folios [number] dated [in] July 2014. The applicants written claims are summarised in the delegate’s decision as follows:

·The applicant is a Sunni Muslim man born in Karachi in Sindh province, Pakistan.

·The applicant was a supporter 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 in Pakistan.

·From 1998 to 2009 the applicant ran a [Business 1] and then from 2010 to2014 he ran the same business [Business 2].

·The applicant claims to have continued attending MQM meetings in first [City 1] and then [Country 1].

·The applicant became disillusioned with the MQM while he was living in [Country 1] and topped attending meetings. Soon thereafter he began receiving threatening phone calls from MQM members as a result of having left the organisation.

·The applicant’s [child] was hit by a vehicle and killed in 2015 and when the applicant returned to Pakistan he was told by MQM members that he had been killed as a result of the applicant leaving the party.

·The applicant fears that he will be killed by members of the MQM if he is to return to Pakistan.

25.Prior to the hearing the applicant sought an adjournment of the hearing based on his medical condition. The applicant provided the Tribunal with a copy a of his General Practice Referral by [his doctor] (‘the GPR’) of [named] Hospital dated [in] August 2018 which indicated that the applicant was suffered from [certain medical conditions]. The Tribunal accepted that the applicant suffered from the medical conditions detailed in the Referral and adjourned the hearing from 23 August 2018 to 30 August 2018 as requested by the applicant. 

Applicant’s evidence.

26.The applicant claims that he was born on [date] in Karachi, Pakistan. He claims that his grandparents were Urdu-speaking Muslims who migrated from Gurjarat, India to Pakistan and as such he claims to be a ‘Mohajir.’ The ‘Mohajir’ population make up the majority of supporter of the Mutahidda Qaumi Movement (MQM) which advocates for the rights of ‘Mohajirs’ [10]

[10] DFAT Country Information Report, Pakistan dated 19 February 2019 p. 46

27.The applicant’s evidence was that his parents have passed away, his mother having passed away in [year]. He stated that he was married and had [a number of] children, [specified]. His family remain living in Karachi. The applicant claims that one of his [children], [Mr A], was killed by MQM members in October 2015 while his other [child] has a [certain qualification] and works in Karachi. His [other child] is married and has [children].  

28.The applicant claims that he was educated in Karachi having attended a [school] and graduated from [University] with a [Degree] in [year]. The applicant claims that while he was at school in or about [year] and later at University he became involved with the MQM and would attend meetings at the MQM office [at] the Jinnah Ground, Karachi.  

29.From 1990 to 1998 the applicant remained in Karachi and worked as a [Occupation 1] for [Organisation 1]. From 1998 until 2009 the applicant owned and operated a business in [City 1], known as [Business 2], [details deleted]. While living in [City 1] the applicant would travel to [Country 2] from time to time on business. The applicant claims that he would spend approximately seven to eight months per year in [City 1] during which time he would attend MQM meeting [details deleted]. The applicant’s evidence was that he did not hold any official positions with the MQM. He did not attend any rallies or engage in any campaigning such as door knocking on behalf of the party. He said that he would attend the meetings to show his support and provided advice to the party as and when it was required.

30.The applicant’s evidence was that upon the expiry of his visa in [Country 3] he sold his business and initially returned to Pakistan. However, in 2010 he moved to [Country 1] where he established another business [details deleted]. He claims that he operated the business in [Country 1] for 2010 to 2014. The applicant claims that while he was living in [Country 1] he remained politically active and would attend MQM meetings. However, he states that he became disillusioned with the MQM as a result of the violence they employed against their political enemies. As a result he stopped supporting the MQM and no longer attended meetings.

31.The applicant claims that as a result of him withdrawing his support for the MQM he began receiving threatening phone calls, including threats to harm his family, from its members. In addition, he claims that his wife in Karachi also received threatening phone calls as a result of him withdrawing his support. [In] October 2015 the applicant’s [child] was killed in a road accident in Karachi, Pakistan. The applicant claims that the MQM was responsible for causing his [child’s] death as a result of him having withdrawn support for the party.

32.The applicant’s evidence was that fears being harmed by members of the MQM due to him no longer attending meetings and having withdrawn his support for the party. 

COUNTRY INFORMATION

33.At the hearing the Tribunal raised with the applicant the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Reports, Pakistan dated 1 September 2017. For the purposes of making this decision, the Tribunal has also considered the Department of Foreign Affairs and Trade Country Information Reports, Pakistan dated19 February 2019. The country information in the DFAT report dated 1 September 2017 relevant to the applicant’s claim has remained the same in the DFAT report dated 19 February 2019.  The 19 February 2019 report states:

Mutahidda Qaumi Movement (MQM)[11]

[11] DFAT Country Information Report, Pakistan dated 19 February 2019 p. 46

3.163MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.

3.164 In 2013, the Rangers – a federal, paramilitary force - (see Police, Frontier Corps and Rangers) commenced operations in Karachi that significantly reduced political violence. MQM leaders claim the Rangers disproportionately targeted MQM, affecting over 500 families since 2013. MQM claims that, since 2013, over 140 of its members were subject to enforced disappearances and over 100 to extra-judicial killings. MQM further claims that government forces detained more than 1000 of its members in the same period. MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.

3.165While numbers are difficult to verify, reports indicate the Rangers killed many MQM members during operations against alleged violence and extortion. In August 2016, the Rangers announced they had apprehended 848 assassins affiliated with MQM ‘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. MQM suspects have reportedly confessed to involvement in 5,863 incidents of targeted killings.

3.166 Militant 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. Anti-MQM sentiment is also connected to allegations that MQM has links with Indian intelligence. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.

3.167 In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address from London to MQM supporters on a hunger strike in Karachi. Altaf allegedly urged supporters to attack media outlets that did not give MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. The attack and subsequent violent clashes with police killed one person and injured several others. Rangers sealed MQM’s offices in Karachi, launched a treason case against Altaf, and arrested five MQM leaders in Karachi.

3.168 Anti-Pakistan rhetoric in Altaf’s speech led to senior MQM leaders to declare they would no longer answer to Altaf and run the movement from Pakistan. The party split into two factions, one loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based party officials (MQM-Pakistan). The government formally recognised MQM-Pakistan (MQM-P) and its former leader, Farooq Sattar. Sattar was replaced by Khalid Maqbool Siddiqui as the leader of MQM-P in February 2018.

3.169 DFAT 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 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.

Health[12]

2.22 Basic health care in Pakistan is free, but limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility.

2.23 In 2010, the 18th Amendment to the Constitution devolved significant powers to the provinces, resulting in highly variable health service provision and budget allocation across the country. The World Bank notes health expenditure accounted for 2.69 per cent of Pakistan’s GDP in 2016, compared to the World Health Organisation’s (WHO) south-east Asia regional average of 4.6 per cent (2015), the WHO’s global average of 6.3 per cent (2015), and the Australian government average of over 10 per cent (2015-16). In addition to budgetary and capacity deficits, the uncertain security environment and incidence of natural disasters have disrupted improvements to the health system……………

2.27 Wealthier Pakistanis have access to better quality private health care. Rural areas have poorer access to health care services, compounded by a lack of infrastructure and transport facilities. Islamic religious practices, such as observation of the purdah, also restrict women’s activities outside the home and therefore create additional access barriers to health care for women and girls (see Women).

2.28 Many religious and secular charities provide emergency relief, education and health services, but generally focus their support on the specific needs of their community or sect.

Prevalence of Document Fraud[13]

[12] DFAT Country Information Report Pakistan dated 19 February 2019 @ 11

[13] DFAT Country Information Report, Pakistan dated 19 February 2019 p. 71

34.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.[14]

[14] DFAT report @ p.42

35.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.[15]

[15] Ibid

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

36.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.

37.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[16]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[17]

[16] s.5AAA Migration Act 1958.

[17]  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.)

38.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[18] 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.

[18]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

39.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.[19] 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.

[19]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Accepted Facts

40.Based on the available country information, the applicants protection visa application and his oral evidence at the Tribunal hearing, the Tribunal accepts and finds that:

(a)the applicant was born on [date] in Karachi, Pakistan.

(b)the applicant can read write and speak Urdu and English.

(c)the applicant is a Sunni Muslim and that his religion is Islam.[20]

(d)the applicant is a ‘Mohajirs’, that is a descendant of Urdu-speaking Muslim migrants from India.

(e)the applicant is married to [Ms B] and that his wife and children continue to live in Pakistan

(f)the applicant attended a  [school] in Karachi and graduated from  [University] with a  [Degree] in 1990.

(g)The applicant’s [child], [Mr A], was killed in a road accident [in] October 2015.

(h)the applicant worked as a [Occupation 1] for [Organisation 1] in Karachi from 1990 to 1998.

(i)the applicant owned and operated a business in [City 1], known as [Business 1], [details deleted] from 1999 to 2009.

(j)The applicant established and operated [Business 2] from 2010 to 2014.

[20] Delegates decision dated 27 October 2016 @ p.1

Applicant’s claim to be a refugee

41.The applicant claims that he fears harm as a result of him withdrawing his support for the MQM and therefore being imputed with an anti-MQM political opinion under s.91R(1)(a) of the Act. The applicant’s fear by reason of his political opinion as claimed is a question of fact and degree, having regard to all the circumstances as disclosed by the evidence.

42.In NAEU of 2002 v MIMIA the Court held that the applicant must establish that his persecutors had actual or imputed knowledge of his political opinion and would exact punishment at least in part because of the applicant’s political opinion.[21] However, in SZANB v MIMIA the Court held that it was not necessary for the applicant to demonstrate a nexus between the harm feared and his political opinion.[22] A political opinion need not necessarily be that of the asylum seeker. The political opinion of the alleged perpetrators of violent acts may also be relevant.

[21] [2002] FCAFC 259 (Madgwick, Merkel and Conti JJ, 24 October 2002) at [14]. However Madgwick J in NACM v MIMIA (2003) 134 FCR 550, doubted but declined to give effect to his doubts as a single judge, the correctness of his own decision in NAEU on this issue, suggesting that rather than asking whether the motivation of the persecutor is the applicant’s actual or perceived political opinion, the relevant question should be whether the applicant’s actual or perceived political opinion accounts for the feared persecution.

[22] [2004] FMCA 387 (Driver FM, 18 June 2004) at [8].

43.In this case the applicant claims that he will be seriously harmed in the event that he is returned to Pakistan as a result of his withdraw of support of the MQM.  The applicant says that he objected to the MQM’s methods of using violence against its political rivals and accordingly stopped attending meetings and withdrew his support for the party. As a result he says he and his family have been threatened by MQM members. Based on the applicant’s claim, the Tribunal accepts and finds that his fear of persecution is based on his political opinion insofar as it contrasts with the political opinion of his alleged perpetrators, being the MQM members.

Applicants ‘well-founded fear’

44.In Chan v MIEA[23] 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.[24]

[23] (1989) 169 CLR 379 at 396.

[24] (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.

45.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 MQM members in the event he is returned to Pakistan.

46.However, to hold a ‘well found fear of persecution’ on objective basis the applicant’s claims must be more than merely plausible or credible. That is, there must be a factual or objective basis for that fear.[25] In Chan v MIEA, Dawson J [26] 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.’

[25]   Chan v MIEA (1989) 169 CLR 379 per Gaudron J at 412; see also per Dawson J at 396, Toohey J at 406 and McHugh J at 429. As Dawson J stated at 396, ‘Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear’.

[26]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

47.In MIEA v Guo, the Court stated that: [27]

‘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.’

[27]   MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

48.In making an assessment of the objective element of the applicants claim the Tribunal has considered the available country information about the conditions in Pakistan, as well his own claims in light of the documentation provided by the applicant. In this case, the applicant’s fear of persecution on his return to Pakistan by the MQM appears to be based more on his own speculation rather than as a result of any direct contact or engagement he has had with members of the MQM in Pakistan.

49.The applicant’s evidence was that he has become involved with the MQM while he was a student in Karachi. He claimed that during that time he got to know many of the party members and as a result when he was living in [City 1] he would attend meetings on a regular basis. The Tribunal was not able to locate any information in relation to meetings conducted by the MQM in [City 1]. However, it notes that the MQM website shows that the organisation has a number of offices [in different countries].[28]  [Details deleted], it seems reasonable that party meetings would be conducted from time to time. As a result, based on the applicant’s evidence the Tribunal accepts that he attended MQM meetings in [City 1] as claimed.

[28] Mutahidda Qaumi Movement website, applicant claims that when he moved to [Country 1] he attended MQM party meetings in [Country 1]. He said that he would attend form time to time to provide advice and support but was not involved in the organisation of the party. The applicant said that the meetings were not conducted at a central location but at people’s homes on a semi regular basis. The Tribunal was not able to find any reference to MQM having offices or conducting meetings in [Country 1]. It is reported that the MQM party leadership has arranged for several of its activists to leave Pakistan for [Country 1], to establish an [office] simialr to the one established in [City 1]. However,  this was denied by the MQM party leadership.[29] A search of the MQM Party [Country 1] [social media] page revealed that has a limited following of [a number of] people.[30] Therefore, based on the country information and the applicant’s evidence concerning MQM [Country 1] it appears that the MQM party organisation in [Country 1] small is relatively small with its affairs, including party meetings and electoral activities, being conducted on an informal ad-hoc basis. Nevertheless, the Tribunal accepts that the applicant attended MQM [Country 1] meetings from time to time.

[29] [Website], ‘[Article],’ [date], [link]

[30] [Website],[link]

51.By a letter dated 28 December 2014[31] the applicant states that he had arrived in Pakistan for his mother’s funeral. He states that he was ‘related to the political party MQM’ in Karachi, but that he had decided to quit the party. He states that ‘they did not accept his decision and ordered him to take it back.’ However, he states that he was not in the mood to carry out his activities upon which they threatened his life. He states that some party workers had come to his house and threatened him and his family.

[31] Department file (number]) @ f[number]

52.However, the applicant’s evidence to the Tribunal was that he was not an officer of MQM and was not involved in any campaign activities on behalf of the party. He said that he merely attended meetings and provided advice to the party from time to time. There was no evidence that he paid any membership fee or provided any other form of financial support to the party or carried out any other ‘activities’ for the benefit of the party. He said while he was living in [Country 1] he had stopped going to the meetings and had withdrawn his support for the party because he had become disillusioned with the violence being employed by the party in Pakistan to advance its cause. As a result his evidence was that he had received threats to kill him and his family by the members of the MQM. The applicant’s described the threats he had received in the broadest of terms. Save to say that he had received the threats from MQM members on the phone the applicant did not provide any further details as to how, where, when and by specifically by whom he had received such threats. 53.         Despite the applicant’s claim that he had travelled to Australia as a result of the threats he had received in [Country 1] from MQM members, the applicant returned to Karachi for his mother’s funeral later in 2014. The applicant did so in circumstances where he claims that he was being threatened by MQM members and the party is based in Karachi.[32] On an objective basis the applicant’s return to Karachi, and the fact that he has allowed his family to remain Karachi, indicates that he does not fear being persecuted upon his return to Pakistan.

[32] DFAT Country Information Report, Pakistan dated 19 February 2019 p. 46  

53.In addition, the applicant claims that the MQM members are responsible for his [child’s] death on or about [October] 2015. The report from the [Hospital] dated [in] October 2015[33] (‘the Accident & Emergency Report) states that the applicants [child] was unconscious having suffered a [injury] as a result of a road [accident]. There is no evidence in the Accident & Emergency Report that indicates the applicant’s [child] was killed by MQM party members.   

[33] Op Cit @ f[number]

54.The applicant provided a FIR dated [in] October 2015[34] by [Mr C] in which he claims that the applicant’s [child] was hit by an ‘unknown vehicle’ driven by ‘unknown persons’ who were speeding and driving carelessly. The FIR does not appear to be a reliable account of the incident. It is not a firsthand account of the incident but rather a report of was reported to Mr [C] about the incident. The FIR fails to identify the type of vehicle that stuck the applicant’s son and the identity and number of persons who were in the vehicle. In particular, it makes no reference to MQM party members having been involved in the accident. The Tribunal notes that it is relatively simple to produce fraudulent FIRs in Pakistan and that DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[35] Therefore, while the Tribunal does accept that the applicant’s [child] was killed in a road accident, even accepting the contents of the FIR there is no evidence that MQM party members were involved in the applicant’s [child’s] death.  

[34] OpCit f[number]

[35] DFAT report @ p.42

55.By an undated letter to the D.G.Rangers, the applicant claims that his [child] was hit by an unknown vehicle traveling on the wrong side of the road.[36] He claims that after his [child’s] accident,  [in] November 2015,  two men from  the MQM came to his house and called him outside and told him that if he denies their instructions he and his family members will ‘face the same nature of treatment’ as his [child]. However, there was no independent evidence that the applicant’s [child] was killed by MQM party members. The fact that the applicant has allowed his family to continue to live in Pakistan indicates to the Tribunal that either the threat was either not real or that he did not fear any harm to his family. Therefore in circumstances there is no direct evidence linking MQM party members to the death of the applicant’s [child] the Tribunal does not accept that his [child] was killed by MQM party members as claimed.

[36] Department file ([number]) @ f[number]

56.In addition, in circumstances where the applicant was not an officer of the party, had not provided it with any support other than advice from time to time, had travelled back to Pakistan in or about 2014 for approximately 9 weeks without being harmed, and his family have remained in Pakistan unharmed, the Tribunal does not accept that two men from the MQM threatened him and his family at their home as claimed. As a result the Tribunal does not accept the applicant’s evidence that he or his family were threatened by party members due to the applicant withdrawing his support for the MQM party as claimed.

57.DFAT has assessed 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. The Tribunal was not able to finds any country information in relation to violence between MQM party members. In fact the Tribunal finds it highly unlikely that the applicant would have been be threatened as claimed given his evidence that he was not an official of the party, was not involved in the party organisation or its electoral activities and there was no evidence that he had contributed finically in any manner. 

58.DFAT also assesses that 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. There is no evidence that the applicant had such a profile. In fact his evidence was that he had rejected the proposed violence adopted by MQM party members.

59.Accordingly the Tribunal does not accept that he or his family were threatened as claimed. 

Applicant’s health.

60.The applicant did not make the claim specifically but the Tribunal has considered if his current health condition my constitute persecution in the event he returns to Pakistan pursuant to s.36 of the Act. The applicant provided the Tribunal with the GPR which indicates that he is suffered from [specific medical conditions].

61.Pakistan's health care delivery system includes both state and non-state; and profit and not for profit service provision. Studies have shown that Pakistan's private sector healthcare system is outperforming public sector healthcare system in terms of service quality and patient satisfaction.[37] The provincial and district health departments, para-statal organizations, social security institutions, non-governmental organizations (NGOs) and private sector finance and provide services mostly through vertically managed disease-specific mechanisms. The country’s health sector is also marked by urban-rural disparities in healthcare delivery and an imbalance in the health workforce, with insufficient health managers, nurses, paramedics and skilled birth attendants in the peripheral areas.[38] Healthcare delivery system of Pakistan is rather complex which includes healthcare sub-systems by federal governments and provincial governments and competing formal and informal private sector healthcare systems.[39] In 2018, Saad Ahmed Javed and Dr. Sifeng Liu proposed, much awaited, the first "comprehensive structure of the Healthcare Delivery System of Pakistan".[40]

[37] Javed, Saad Ahmed; Liu, Sifeng; Mahmoudi, Amin; Nawaz, Muhammad (2018-08-30). "Patients' satisfaction and public and private sectors' health care service quality in Pakistan: Application of grey decision analysis approaches". The International Journal of Health Planning and Management. doi:10.1002/hpm.2629. ISSN 0749-6753. PMID 30160783.

[38]  nhsrc.gov.pk Retrieved 25 march 2019

[39]  Javed, Saad Ahmed; Liu, Sifeng (2018-10-08)."Evaluation of outpatient satisfaction and service quality of Pakistani healthcare projects". Grey Systems: Theory and Application. 8 (4): 462–480.

[40]   ibid

62.On 31 December 2015 the Prime Minister’s National Health Program (PMNHP) was launched.[41] It was a state-run health insurance program. The initiative was taken by ex-Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif. The main aim of the program is to benefit the Pakistani citizens living under the line of poverty. Federal Health Minister was appointed to monitor the process. The free-of-cost treatment was offered for cardiovascular diseases, Diabetes Mellitus, and life and limb saving treatment, implants, prosthesis.[42]

[41]  "PM launches health scheme for the poor". DAWN.COM. Retrieved 25 March 2019.

[42]   ibid

63.Therefore while the Tribunal acknowledges that the health care system in Pakistan is not ideal, it finds that it does provide the necessary standard care in relation to the medical conditions suffered by the applicant. In particular in Karachi were the applicant’s family is based and it’s assumed he would return there are many licensed medical healthcare centers. The applicants own evidence in relation to his own business experience indicates that he would be able to access the private medical system in Pakistan. In any event, if this was not the case the Tribunal finds that the applicant would be able to access the public health system which is capable of meeting the applicant’s medical needs. As such, the Tribunal finds that there is no real chance the applicant would suffer serious harm as a result of his current medical condition in the event that he returns to Pakistan. 

64.Therefore, the Tribunal finds that applicant does not have a real chance of being seriously harmed in the event he is returned to Pakistan. As such, in all the circumstances the applicant does not have well-founded fear of persecution based on his claim of being threatened and killed by members of the MQM and as a result of his medical condition upon his return to Pakistan.

65.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

66.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.

67.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 or inhuman treatment or punishment and degrading treatment or punishment.  The applicant claims that he will be targeted and killed by members of the MQM in the event he returns to Pakistan. However, the Tribunal, for reasons set out above, has already found that the applicant does not face a real chance of serious harm if he returns to Pakistan. It therefore follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from members of the MQM as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

Applicant’s Health

68.As referred to above the applicant has suffered from [medical conditions] and as such the Tribunal has considered the applicants medical condition under s.36(2)(aa) of the Act.  While not specifically stating so, the Tribunal assumes that impliedly the applicant would claim that he will not be able to receive medical care in Pakistan and therefore will suffer harm. While, the Tribunal accepts that the health care system is not at a satisfactory level in Pakistan, care is available both privately and via the public health system.[43]

[43] DFAT Country Information Report Pakistan dated 19 February 2019 @ 11

69.However, the definition of torture under Complementary Protection requires an element of intent. It is an act or omission by which severe pain or suffering is intentionally inflicted on a person for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. Therefore intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the suffering by their conduct.[44]

[44]  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.

70.In SZTAL v MIBP, a majority of the High Court rejected the contention that knowledge or foresight of a result establishes the necessary intention element of the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.[45] While evidence of foresight of the risk of pain, suffering or humiliation may support an inference of intention (and in some cases may render the inference compelling), foresight of a result is of evidential significance only.[46]

[45] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) per Kiefel CJ, Nettle, Gordon and Edelman JJ (Gageler J dissenting). Their Honours found no error in the Tribunal’s conclusion that while the applicants would likely be remanded in a prison for a short period, the evidence did not support that any pain or suffering as a consequence would be by an ntentionally inflicted act or omission, as the poor prison conditions were due to a lack of resources rather than any intention by the Sri Lankan government to inflict such harm.

[46] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [27], [29] and [99]-[100].

71.Mere negligence, without more, will also not establish the necessary intention element of any of the relevant definitions in s.5.[47] Establishing the necessary intention also likely requires identification of the individual(s) who will carry out the act or omission.

[47] See SZSPE v MIBP [2013] FCCA 1989 (Judge Emmett, 27 November 2013) at [68] and [72] (upheld on appeal SZSPE v MIBP [2014] FCA 267 (Yates J, 27 March 2014)) and SZTUL v MIBP [2014] FCCA 1985 (Judge Driver, 29 August 2014) at [31]-[32] (leave to appeal this judgment was dismissed: SZTUL v MIBP [2014] FCA 1427 (Logan J, 26 November 2014)).

72.Finally to amount to torture under ss.36(2A)(c) and 5(1) of the Act, an act or omission by which severe pain or suffering is intentionally inflicted on a person must be inflicted for one of the five specified purposes. These purposes are exhaustive and an act or omission intended to inflict severe pain or suffering for a different purpose will not amount to torture (although it may potentially amount to another type of significant harm). Both the Act and the Explanatory Memorandum are silent as to whether the purpose must be the sole purpose for the infliction of severe pain or suffering.

73.Therefore while the Tribunal acknowledges that the health care system in Pakistan is not ideal, it finds that it does provide the necessary standard care in relation to the medical conditions suffered by the applicant. In particular in Karachi were the applicant’s family is based there are many licensed medical healthcare centers. The applicants own evidence in relation to his business experience indicates that he would be able to access the private medical system in Pakistan. In any event, if this was not the case the Tribunal finds that the applicant would be able to access the public health system which is capable of meeting the applicant’s medical needs. As such, the Tribunal finds that there is no real risk that the applicant would suffer significant harm as a result of his current medical condition in the event that he returns to Pakistan. 

74.As such the medical condition of the applicant does not constitute significant harm within the meaning of s.36(2A) of the Act.

75.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his 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.

76.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).

77.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

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

79.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).

80.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

81.The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell

Senior Member