1611738 (Refugee)

[2019] AATA 5036

1611738 (Refugee) [2019] AATA 5036 (17 June 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611738

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Justin Meyer

DATE:17 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 17 June 2019 at 2:12pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – extortion attacks and threats – successful business person with connections to Western countries – country information – decision under review remitted

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 26 June 2014 and the delegate refused to grant the visa on 12 July 2016.

3. The applicant appeared before the Tribunal on 1 March 2019 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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. 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’).

9. 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.

10. The issue in this case is whether the applicant has a well-founded fear of persecution or a real chance of significant harm.

11. I find the applicant to be a Pakistan national based on the passport and identity evidence supplied to the department.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

13. The applicant submitted that:

    ·He is a [age] year old Pakistani citizen, a practising Sunni Muslim, born and grew up in Karachi, in the Sindh Province of Pakistan. The basis of the applicant’s claims stems from the multiple attacks and threats he has suffered in his hometown, Karachi in 2014.

    ·He believes that he is targeted as the men who threatened and robbed him knew specific details of his daily life and trips to Australia and if he were to return to Pakistan, he would remain a target for extortion and murder.

    ·A brief chronology of the relevant events are as follows:

    - [date] 

    The applicant was born in Karachi, Pakistan

    -June 2006 

    The applicant started working as an [Occupation] at [Employer]  and have travelled to [Country 1] with his employer for business

    -[October] 2007 

    The applicant completed a [qualification in subject] at [Institution 1]

    -[May] 2011

    The applicant applied for and was granted a [temporary visa 1] to Australia

    -[December] 2011

    The applicant travelled to Australia for the first time on a [temporary visa 1] Visa for 16 days where he met with a businessman from [Country 2], and his name was [Mr A]. They visited multiple [businesses] in Melbourne. After the meeting, they agreed that the applicant would take over the [business], [Company 1]. [In] December 2011 the applicant returned to Pakistan and became the CEO of [Company 1] and specialised in [a service relating to] countries such as [region], Australia and [Country 3].

    -[May] 2012

    -The applicant started his own [business], [Company 2] and began working with a [firm], [Company 3] located in Melbourne, Australia.

    -[June] 2012 to [July] 2012.

    The applicant travelled to Melbourne Australia to meet [Person B] and visited various [businesses] [to] grow and expand his business.

    -[July] 2012

    The applicant returned to Pakistan to continue to run [Company 2].

    -August 2013

    The applicant applied for and was granted the [temporary visa 2] with multiple entries.

    -[August] 2013 to [October] 2013

    The applicant travelled to Australia on a [temporary visa 2] to meet with [Company 3] and [Business 1] ([Person C]) to further develop his business connections.

    -[October] 2013

    The applicant returned to Pakistan

    -[October] 2013

    The applicant marries [Ms D]

    -[December] 2013 to [February] 2014

    The applicant travelled to Melbourne Australia again to meet with [Company 3] and received [documents] from [two other businesses] and [Business 1]. The applicant’s business was going extremely well and was expanding.

    -[February] 2014

    The applicant returned to Karachi, Pakistan [in] February 2014. The applicant’s cell phone and wallet were stolen.

    -[February] 2014

    The applicant went to the Karachi Police Station in an attempt to make a FIR report regarding the incident. The police officers at the station told the applicant that if he wanted them to file a FIR, that he had to pay them a bribe of [amount] rupees.

    -[April] 2014

    On a Monday afternoon around 3:00pm, the applicant hid was travelling to his office in his brother’s car. When the applicant stopped the car near [Location] Gulshan-e-Iqbal, he was stopped by two men on a motorcycle. They asked the applicant to confirm his name and upon confirming that he was the person they were looking for, they threw an envelope into the applicant’s car and told the applicant that he had to comply with the instructions in the envelope. The two men took off afterwards. The enveloped contained a paper slip which requested that the applicant pay them [amount] rupees or they would kill the applicant and his family. The letter detailed the applicant’s daily routine and the details about his travels to Australia. The applicant was struck with fear and did now know what to do. He did not report it to the police as they would ask him for a bribe again.

    -[later in April] 2014

    The applicant went to the Karachi Police Station to report the incident. Once again, he was asked by the police officers at the station to pay a bribe before they would file the FIR for him. The applicant paid the police officers [amount] rupees and a FIR was filed.

    -[May] 2014

    The applicant received a threatening phone call from two men. They told the applicant that they knew about his police report and that he should not have gone to the police. They then told the applicant prepare the [amount] rupees as soon as possible otherwise they will kill the applicant and his family and threatened that he does not contact the police anymore.

    -[later in May] 2014

    The applicant decided to leave Pakistan and he travelled to Australia [in] May 2014.

    -26 June 2014

    The applicant lodged a Protection Visa Subclass 866 on 26 June 2014 to seek the protection of Australia.

    -[2014]

    The applicant’s [child] was born

    ·Based on the history of crime and violence in Pakistan and the applicant’s profile as a businessman with connections to western countries, he faces a real chance of persecution or real risk of significant harm if he were to return to Pakistan. The applicant believes that there is a real chance that he will be murdered if he returned to Pakistan as he has refused to pay the extortion money and fled the country.

    Applicant’s written submission:

14. The applicant was the victim of the death threats and extortion in April 2014 due to his local business and wealth. Multiple news reports have revealed deaths of extortion victims who were killed when they refused to pay the extortion money.

15. After the three separate incidents suffered by the applicant, he was too afraid to leave his house to go to work. The applicant was constantly anxious that he would be attacked as soon as he left his house and did not feel safe at all in his hometown. If the applicant were to return to Karachi, he would face serious harm or be arbitrarily deprived of his life.

16. The applicant completed his studies in [subject] and started his own [business]. The applicant’s business was his passion and hard-work where he has dedicated time and money towards growing his business. As a result of these extortion threats, the applicant stopped working and attending his office.

17. A news article was produced which the applicant states shows an extortion note of the kind the applicant received. This supports the applicant’s statement that he received such a note.

18. Prior to applying for the Protection visa, the applicant was travelling to and from Australia and other countries. He had established a record of compliant travel to Australia and seemed to have little difficulty obtaining visitor visas. In June 2014, the applicant’s wife was pregnant and expecting their first child. After the applicant arrived in Australia in May 2014, he made the difficult decision to remain in Australia and apply for a protection visa rather than returning to Pakistan for the birth of his [child], then returning again to Australia. This lends credibility to his claim of fearing serious harm in Pakistan.

19. After the incidents, the applicant suffered anxiety-related conditions for which he is currently taking [medication]. However, if the applicant were to return to Pakistan, he believes his condition will deteriorate.

20. According to news reports, extortion cases are mostly linked to large criminal groups in Pakistan and while there is a high extortion rate in Karachi, other populous cities in Pakistan have witnessed similar occurrences. If the applicant resumes business in Karachi or elsewhere, he will face the risk of being harmed by the same extortionists who threatened him and had detailed information regarding his movements and whereabouts or other groups.

21. It is unreasonable for the applicant to relocate to another city in Pakistan. Based on the country research information available, although targeted attacks and extortion were primarily a Karachi phenomenon, other parts of Pakistan including the main cities have similarly been affected. Karachi is known as the main source of revenue, generating 68% of the Pakistan government’s revenue and 25% of the country’s gross domestic product, meaning that most business and employment opportunities are in Karachi. The applicant instructs that if he were to relocate to another city in Pakistan, the market in other cities are just not big enough for a business like his to remain profitable. Furthermore, the applicant has expressed his fear in trying to set up a business in Pakistan as it would ultimately attract unwanted attention from the extortionists. The applicant would have to start over a new life in an unfamiliar city in Pakistan and seek alternative employment.

22. Unemployment in Pakistan has been a concern for decades. The employment to population ratio in Pakistan is 51.5% meaning that nearly half of the population remains unemployed.25 It has also been reported that at least 69.48% of the labour force in Pakistan works 40-56 hours or more per week at low wages. It would be extremely difficult for the applicant to relocate to another city in Pakistan, seek employment and attempt to provide financial support for his wife and [child]. The applicant’s current employment in Australia provides a stable income and support for his family. Furthermore, the applicant is able to work in Australia without the constant fear of being attacked or killed once he left his home.

23. It would be extremely difficult for him to relocate to another city as each city in Pakistan is unique to its own language, culture and religion. The applicant is an Urdu speaking Sunni Muslim who only has knowledge about the social and political cultures of Karachi. The applicant has also instructed that the extortionists are related to large criminal gangs all over Pakistan and his safety will still be at risk despite moving to another state. The applicant still suffers from anxiety and depression due to the incidents that happened in 2014.

24. Extortion and targeted killings have been a widespread phenomenon in Pakistan. The law enforcement authorities do not have the required resources or knowledge to deal with these crimes committed by large criminal gangs. From the applicant’s personal experience, he was required to pay bribes to the police officers simply to lodge FIRs about his incident. No state protection is available to the applicant given the situation in Pakistan.

25. He is a person in respect whom Australia has protection obligations as there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Pakistan, there is a real risk that he will suffer significant harm. He would be arbitrarily deprived of his life.

    The applicant’s evidence in the hearing

26. The applicant gave consistent evidence in the hearing. His remarks and answers to questions were consistent with his written claims and submissions to the department and the Tribunal. He could give rational descriptions of the events claimed and reasons for his actions.

27. One of the matters which arose in the delegate’s decision was the reason for the applicant being extorted. The applicant said that he did not know why he was being targeted but wondered whether it was because had attracted attention by traveling overseas on business. He had done business in western countries. He had been to Australia and [region] for example. His home was in a lower middle class area and he had a relatively new car by Pakistani standards. This might have attracted attention. These were all plausible possible reasons and the Tribunal does not have concerns as to the applicant not knowing exactly why he was targeted. Indeed a victim of crime might not necessarily know the precise reasons why he or she is targeted. A person trying to extort another does not need to have a deep knowledge of the victim or even have something against the victim. They may well want to raise cash and they simply look for the most convenient way to raise it.

28. The applicant agreed that the first incident was probably a random attack. He believed that the second threat, the extortion demand, was aimed at him. He did not have a reason to believe that they were connected. The Tribunal indeed finds that the two events were not connected, yet this does not mean there are therefore fewer reasons to find that the applicant has a well-founded fear of persecution. The first event - the February 2014 demand for his phone and money - gives context to the applicant facing problems with his personal security. The second event – the April 2014 demand – reinforces a serious concern about his personal safety. In one incident the perpetrators did not seem to know who he was, but in the second other perpetrators did know his identity. In both cases the threat is personal to him. The applicant’s evidence about both events was detailed and consistent. He could describe the locations, appearances of the perpetrators and time of day. He did not make errors in recollection about why his car had stopped, what people said to him and his description of his emotions was fitting to the situations described.

29. I asked the applicant about whether he had a copy of the original April 2014 threat letter in Urdu, but he had not kept it. Nonetheless he could describe it as handwritten, in Urdu and written by a less-educated person, with mistakes. He gave this evidence spontaneously. He recalled a [amount] sum as being demanded and a remark that the perpetrators knew all about him and would come for him.

30. The applicant also gave oral evidence consistent with his written submission about receiving a threatening phone call from two men. The men told the applicant that they knew about his police report and that he should not have gone to the police. They then told the applicant prepare the [amount] as soon as possible.

31. I also accept that the applicant discussed his options with a family friend who he could name. The report to the police was costly and useless, when considering how the applicant was not helped the first time by police. He did not have the money which amounted to approximately [amount]. He said he could not afford this sum. He knew that the amount might be negotiated downwards but he had no guarantee that that he would not continue to be contacted by the perpetrators. He could give detail regarding the name of the friend, his location and the options discussed. He rang his friend but would not discuss matters on the phone. They arranged to meet in person. He gave a plausible account of being persuaded to go again to the police and paying a bribe to make another report. The visit to the police station was described in detail. He paid a bribe in order for the report to be paid. The applicant was shown the first incident report by the Tribunal, and he could identify the various aspects of the report. The applicant’s friend had the original report sent to the applicant in Australia. The original was shown to the Tribunal. The department has not seen this original document. The Tribunal finds that producing an apparent original report adds weight to the applicant’s claims.

1. I find that the two incidents of February 2014 and April 2014 occurred as described by the applicant.

2. He travelled to Australia in May 2014 and decided to apply for protection. He had earlier received threatening calls on his cell phone. I find that he was told by the perpetrators or their agents that he would be punished for contacting police. I find that he made his family move house after these and other threats.

3. I find that the applicant did not delay whilst in Australia to apply for protection. The delegate appears to be under an impression that there was a delay until 2014. However I find that the threats and harm to the applicant only occurred in 2014 and there was no delay in applying for a protection visa. This too weighs in the applicant’s favour.

   Country information

4. I have given regard to a variety of country information.

5. There have been reports of extortion, also known as “Bhatta” in Karachi in the last decade. According to the Citizens-Police Liaison Committee (CPLC) Chief, it is known as one of the top crimes in Karachi, Pakistan.1 Victims of extortion include both individuals and business owners in Karachi.2 According to the Human Rights Commission of Pakistan (‘HRPC’), businesses of all sizes are targeted by criminals believed to be connected with political groups in Karachi.3 The Supreme Court of Pakistan has verified HRPC’s claims that these extortion crimes are committed by criminals backed by political parties and that they are extorting at least 10 million rupees a day.4

6. Karachi is known as one of the world’s most violent cities. According to a Foreign Policy news article, the murder rate in Karachi is reported to be 12.3 per 100,000 residents which is 25 per cent higher than any other cities in Pakistan.5 In 2012, there were 2174 reports of targeted killings and in 2013, one of the deadliest years, 2700 killings were reported.6

7. Extortion and targeted killings have been a widespread concern in Pakistan, particularly in populated cities like Karachi. According to a DAWN news article dated 15 July 2017, despite the government’s effort in launching the targeted operation in September 2013 to reduce the high killing and terrorism rate in Pakistan, studies reveal that the number of extortion cases have increased significantly. A total of 891 cases of extortion were reported in the 46 months prior to the launch of the targeted operation and the number of extortion cases reported skyrocketed to 1135 during the operation.7 Cases of extortion and targeted killings still occur every single day in Karachi.

8. There have been countless reports of victims being attacked or killed as a result of not paying the extortion money requested by the extortionists.

9. In 2011, according to a news article by Dawn, a local businessman had been approached and threatened to pay 3 million rupees or they would kill him.8

10. In July 2012, four people were reported killed in Karachi. Two of the victims owned a prawn factory while another victim was a fisherman. These victims were killed for refusing to pay extortion money. This act was believed to carried out by Lyari gangsters.

11. In January 2015, a factory manager was killed as he refused to pay money to the extortionist. The victim was targeted by the extortionists and when they came to his factory at a later date to collect the extortion money, the victim refused and was subsequently shot dead.9

12. A March 2017 report by Human Rights Watch reported that “Islamist extremist groups and factions of political parties have attacked schools for not paying extortion money”.10

13. In the 18 June 2018 country report published by Asylum Research Centre, it revealed that in December 2016, militants associated with illegal organisations are targeting businessmen in Karachi’s Central Vegetable and Fruit Market and have made extortion calls to these businessmen to request for protection money. 11A complainant, Achakzai who is a fruit vendor in Karachi reported his incident to the police. He told the police that the criminals who made the extortion calls to him knew each and everything about him and mentioned the location and movement while making calls.12

14. According to a report by International Crisis Group, endemic violence in Pakistan’s urban centres is one of the biggest challenges faced by the government.13 This report refers to Karachi as an evident example where 2700 deaths caused by targeted attacks were recorded in 2013 making it one of the deadliest years on record. It was also revealed that approximately 40 per cent of businesses in Karachi fled the city to avoid being a victim of extortion. It is however noted that all provincial capitals as well as national capitals are facing the same threat and issues.14

15. Despite the issue being around for years, Karachi has not seen any significant improvement in the protection of its citizens. This is mainly due to the fact that the law governing authorities either lack the knowledge or resources to deal with situations like these.

16. Furthermore, it has been long acknowledged that there is corruption within the police force in Pakistan.15 Unfortunately, due to the lack of resources and low wages in Pakistan, police authorities easily fall into temptation. The Capital Police Officer of Karachi has reported that the police force is aware of the high crime rate and targeted killings in Karachi however they are doing nothing about this. Police officers are said to be staying out of the conflict as there has been hundreds of police officers killed in the past 10 years where they have intervened. Police morale is recognised to be low in Pakistan and that no action has been taken in cases of extortion.16

17. The United States Department of State has reported that First Information Reports (FIR) in Pakistan are believed to be filed by police officer only if a complainant makes a bribe payment.17 A report by the Commonwealth Human Rights Initiative (HRCP) revealed that police officers in Pakistan face a shortage of resources and are remunerated poorly which is a main drive for their involvement in corruption and inadequate performance.18 Some police officers request for bribe payments prior to agreeing to lodge a FIR and paying a bribe to the police to avoid charges are not uncommon.19

18. The Express Tribune reported on 11 February 2017 that at least 70 per cent of extortion victims do not approach the law enforcement authorities20, meaning that the publicly available information regarding the number of extortion cases happening in Karachi appears a lot lower.

19. The issue of extortion and targeted killings in Karachi, Pakistan is ongoing.

20. The applicant has been targeted. If he were to return to Karachi, there is a high chance that he will be harmed.

21. Extortionists can collect extensive information about their victims. They quite possibly to locate the victims who do not pay the extortion money. The applicant could be targeted and harmed if he were to return to Pakistan.

22. I find that there is a real chance that, if he returned to his receiving country, the applicant would be persecuted. The real chance of persecution relates to all areas of a receiving country. The country information does not confine the risk facing the applicant to particular areas of Pakistan. Although the risk may be lower in other cities where the applicant is less known or not known, I do not accept that relocation is a viable option for the applicant. I am also concerned about the degree to which the risk could be reduced living in other areas of Pakistan. I am not prepared to make an assumption that criminals or their affiliates, or others would be unable to identify and find the applicant or his family. I accept that he has been harassed by telephone and otherwise harmed and threatened in Pakistan by such persons. He has been consistent in his evidence on this score. I have not encountered credibility issues in an overall sense with the applicant.

23. Having gauged the applicant’s history and his relatively easy identification along with his contact with his family and social grouping I find that he would not be able to modify his behaviour in such a way to mean that he no longer has a real chance of being persecuted.

24. I am satisfied that the incidents that he has described are well-supported by documentary evidence such as police reports. I have questioned the applicant in detail about various incidents and have no reason to believe that they did not occur or are exaggerated.

25. The applicant was asked in detail about his life story and found his answers to be consistent and in line with his written claims to both the Tribunal and the Department.

26. I acknowledge that whilst Pakistan’s formal legal framework provides for state protection of people, state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and deficits in political will. I am not confident that the applicant could be protected to any reasonable degree by the authorities.

27. The applicant falls within the refugee criterion as a member of particular social group and he can be seen to be clearly identifiable in this way as being within the groups: ‘victims of extortion', ‘business persons vulnerable to harm for western sympathies or their prosperity.’

28. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

29. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Justin Meyer
    Member

    
    

    [i]

    
    

    1 Pakistan 6 Oct. 2011, 45, 150; Reuters 28 Aug. 2011; HRCP 8 Oct.2011; The Economist 27 Aug. 2011
    4 Ibid.
    5 Taimur Khan, “Cooking in Karachi”, Foreign Policy (online), 3 September 2013. The cited rate is for 2012.
    6 Faraz Khan and Gibran Ashraf, “Karachi 2013: the deadliest year of all”, The Express Tribune, 6 January 2014.
    Human Rights Watch, “Dreams Turned into Nightmares” Attacks on Students, Teachers, and Schools in Pakistan,
    March 2017, p. 15
    11 Ibid.
    17 The Express Tribune, Most people pay up extortion: police, 11 February 2017
    20 Ibid