1614937 (Refugee)
[2020] AATA 1709
•30 April 2020
1614937 (Refugee) [2020] AATA 1709 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1614937
COUNTRY OF REFERENCE: Pakistan
MEMBER:C. Packer
DATE:30 April 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
STATEMENT MADE ON 30 APRIL 2020 AT 3:16PM
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – medical and mental health issues – expert opinions – race – Mohajir ethnicity – political opinion – Muttahida Quami Movement (MQM) supporter – member of the MQM student wing – low level party involvement – fear of harm from members of Jammit-e Islami (JI) – Minhaj-ul-Quran supporter – returnee from the West – marriage to a woman of different religion, ethnicity and nationality – children born out of wedlock – right to enter and reside in a third country – access to health care in Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man aged [age], born in Pakistan and a citizen of Pakistan.
The applicant arrived in Australia [in] July 2007, as a holder of a student visa, and had travelled on a Pakistan passport issued [in] 2005 and valid to [in] 2010. He renewed the passport in Australia [in] 2010. In Australia he held student visas until his last student visa was cancelled on 22 March 2010.
On 3 April 2013 the applicant applied for a Protection (Class XA) visa. On 5 December 2013 the applicant attended an interview with a delegate.
On 30 April 2014 the delegate refused the application.
The applicant applied for review of the delegate’s decision. The Tribunal differently constituted (Tribunal 1) held a hearing on 30 September 2014, and on 31 October 2014 affirmed the delegate’s decision. Subsequently, on 31 August 2016 that decision was remitted to the Tribunal by the Federal Circuit Court.
On 18 May 2017 the applicant attended a Tribunal hearing differently constituted (Tribunal 2). However, that member was unable to finalise the review.
On 11 June 2019 the applicant attended my hearing. I adjourned the hearing so that he could consult with a representative. The hearing was scheduled to resume on 11 December 2019 but was cancelled at the applicant’s request so that he could consult with [Charity 1] on that date. The hearing resumed on 16 December 2019. His representative attended. At the end of the hearing, I adjourned the hearing so that his wife could attend in person. The hearing was scheduled to resume on 9 January 2020 but was cancelled at the applicant’s request on the basis of a medical certificate dated 8 January 2020 that stated he was experiencing severe [Medical Condition 1 symptoms].
The hearing resumed on 4 February 2020. The applicant’s wife, [Ms A] gave evidence. His representative attended. At hearing an Urdu interpreter was used, and a [Country 1 language] interpreter was used for the wife’s evidence.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on his political connections with the Muttahida Quami Movement (MQM) party, his return to Pakistan from the West, his health conditions, and the circumstances of his marriage to a woman of different religion, ethnicity and nationality, and their children. After considering his evidence and the material before the Tribunal, I do not accept that these circumstances even when considered cumulatively, lead him to meet the refugee criterion or be entitled to complementary protection. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at hearing. In the written application, the applicant stated that he was born and raised in Karachi. He is a Mohajir, and a Sunni Muslim. He showed he had completed schooling from 1995 to 2004 in Karachi at a secondary school, [specified], and then at a [college]; and from 2006 to 2007 he showed [Discipline 1] education. He showed work in Karachi as a ‘[Occupation 1]’, a [Occupation 2], and a ‘[Occupation 3]’ in various periods from 2004 to April 2007. He showed he travelled to Australia as a student and in Australia he showed study from 2007 to 2008 at [Education Provider 1], and from 2009 to 2010 at [Education Provider 2]. He listed his immediate family and showed he had: a sister in Australia; and parents, [number of] brothers and [number of] sisters in Pakistan.
At Tribunal member 2’s hearing he stated the parents had sold the family home to pay for the sisters’ weddings and now divided their time between the homes of the sisters’ husbands. He stated in Australia he had worked at a [Business 1] and a [Business 2].
At my hearing he produced a Marriage Certificate that showed he and [Ms A] married [in] December 2018. He stated he identifies as a Sunni Muslim and his wife is [non-Islamic] and they were married by the [Organisation 1] because it was free. They live together with their two children (a daughter aged [age], and a son aged [age]) in charity group accommodation and live on charity and vouchers as neither work. He stated his wife has a Student visa matter before the Tribunal (differently constituted) and she wishes to study in Australia. He stated his parents move around Pakistan and stay with relatives in Karachi and Lahore. He has [number of] brothers in Pakistan (one whose whereabouts are unknown), and [number of] sisters. He has a married sister in Australia.
Country information[1] shows that Pakistan is a Muslim-majority state located in South Asia and is the sixth most populous country in the world, with the 2017 census[2] revealing a population of 207.8 million, showing an increase of 75.4 million people in 19 years. Over 31% are aged between 15 and 29. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). Just over half the population of Pakistan lives in Punjab (110 million people), 23% live in Sindh (47 million), over 14% in Khyber Pakhtunkhwa (30 million), just under 6% in Balochistan (12 million), just over 2% in the former FATA (now part of Khyber Pakhtunkhwa) (4 million), and less than 1% in Islamabad (2 million). Punjabis form the largest ethnic group (44.7%), followed by Pashtuns (15.4%), Sindhis (14.1%), Saraikis (8.4%), Mohajir (Urdu-speaking immigrants from India, 7.6%), Balochi (3.6%), and others (6.3%, including Hazaras who number at less than 1%). Urdu and English are the official languages of Pakistan.
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 20 February 2019, (the DFAT report Pakistan) [
[2] The Express Tribune, 6th census findings: 207 million and counting, 25 August 2017, [ of claims
The applicant claims to fear persecution in Pakistan from members of Jammit-e Islami (JI), other Islamic groups or other political agencies. His key claims as summarised are:
·He and his family were Muttahida Quami Movement (MQM) supporters. An uncle was killed by People’s Party of Pakistan (PPP) members when the applicant was age [age].
·At college he joined the MQM student wing- the All Pakistan Mohajir Students Organisation (APMSO). There had been political violence on campus, and Jammit-e-Islam (JI) had been the worst for violence. He was bullied at school, including because he had female friends, and because he would not stop playing in the [sports] team. At hearing he said the first incident had involved pushing and shoving at a party stall on campus.
·He was once kidnapped and bullied/hit by JI supporters, they stole his things and then released him. At hearing he stated this happened when he got into an argument with those students.
·He once arrived home to find people outside his house, so he hid until they left. That night they returned and tried to force their way inside and pushed the father very forcefully. He feared to return to college after this, and instead studied and completed his studies at home. At hearing he said people kept coming to his home asking after him; one night they pushed into the flat and pushed the father, and when they saw the applicant they were abusive and made threats; after these incidents the family moved to another flat.
·The applicant’s brother had a [shop] [and] JI supporters often attacked and threatened the brother.
·In Australia he did some work for MQM as [Position 1]. He attended functions and [helped out in various ways]. He attended a protest in 2013. He withdrew from activities when the MQM split after Altaf Hussain’s speech in August 2016. His last activity was to pray after the New Zealand shooting occurrence.
·In Australia he also joined the Minhaj-ul-Quran organisation.
·He and other activists are on jihadists’ and opposition parties’ lists.
The applicant also claims he fears to return to Pakistan with his wife and children:
·Due to the circumstances of his marriage to a woman of different religion, ethnicity and nationality, and their children.
·Because his marriage would not be recognised in Pakistan.
·Because of probable social discrimination, harassment and violent reprisal due to their differing religions and perceived illegitimate children.
In submissions the applicant claims he has a well-founded fear of persecution in Pakistan arising from:
·Political opinion: He fears JI activists, other Islamic groups or other political agents will harm him because of his political opinion and MQM support and activities.
·Race: He fears JI activists, other Islamic groups or other political agents will harm him because of his Mohajir ethnic group.
·Religion: He fears JI activists will harm him as they will view his practice of Islam as un-Islamic.
·Religion: He fears that should he return and take his wife and children, they would all face harm because his wife is non-Islamic [and] his children were born out of wedlock.
·Membership of a particular social group, of returnees from the West.
On 27 April 2020 a submission submitted:
Compounding the applicant's claims is the fact that the client suffers from serious and chronic respiratory issues, among his other physical and mental vulnerabilities (we refer to the previously submitted medical evidence in this regard). For this reason, the applicant is especially at risk from the current COVID-19 pandemic. As he comes from a minority ethnic and language group in Pakistan, he would, in all probability, be unable to access support or care, even in the event that effective therapies or vaccines become available.
Evidence
The evidence before the Tribunal includes the following material (not all is listed):
·the applicant’s Protection visa application form lodged on 3 April 2013, which includes his statement of 27 March 2013 that gives reasons for seeking protection in Australia
·passport pages, identity documents, work references, Marriage certificate, birth certificates
·statements, country information, photos including of MQM meetings in Australia
·death certificate for uncle killed [in] April 1995
·Minhaj-ul-Quran International Victoria card showing he is a ‘[Position 1]’
·the Protection visa decision record (‘delegate’s decision’) dated 30 April 2014, which is the subject of this review
·the application for review, which has attached to it a copy of the delegate’s decision provided by the applicant
·an MQM Australia letter [of] October 2014 that shows he has been with them since 2008, and due to his loyalty and hard-working he had been appointed [Position 1] for Melbourne
·Tribunal 1’s hearing and decision
·Tribunal 2’s hearing
·Country information, including provided by the applicant
·Submissions including those dated 3 and 11 February 2020, and 27 April 2020
·Medical reports and documents, social worker letters
On 11 June 2019 the applicant first appeared before me. He had sought to reschedule the hearing on the basis that he had not had sufficient time to get a representative and prepare for the hearing. However, the Tribunal did not agree to reschedule and he appeared, together with an observer from [Charity 2]. The hearing was conducted with the assistance of an accredited interpreter in the Urdu and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation. At the start of the hearing I asked whether he was well and able to talk about his story, and he indicated he was able to talk despite having been stressed for two days. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence.
During the hearing he indicated he wanted to brief a representative after he obtained FOI access to his files. The applicant gave information about his current circumstances and the Tribunal then adjourned the hearing.
The hearing resumed on 16 December 2019. At the start of the hearing I asked whether he was well and able to talk about his claims, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence on this occasion.
He stated his wife did not attend as she was caring for their sick child. At the representative’s request I phoned [Ms A] but the phone interpreting was not clear and so I ended the phone call and told the applicant I would not rely on any of what was said.
The hearing resumed on 4 February 2020. At the start of the hearing I asked whether he was well and able to talk, and he stated he was. At this resumed hearing he similarly appeared to fully understand questions and he gave coherent answers and explanations. His wife [Ms A] gave evidence with a [Country 1 language] interpreter, whilst what was said was also interpreted into Urdu, and I next discussed the wife’s evidence with the applicant. I consider that the applicant has had a full opportunity to put forward his claims and arguments at hearing.
At the end of the hearing he indicated he had additional information he could provide to support his case. I allowed him seven days to provide any additional information. On 11 February 2020 he requested further time in order to submit additional documents. Later that day the representatives provided a submission and further information. The Tribunal allowed him further time to 20 February 2020. On 19 February 2020 the representatives advised “I confirm the applicant will not be putting forward any further information, other than our submission by email on 11 February 2020”.
The Department had not issued a certificate under s438 of the Act.
Assessment of claims: credibility
The applicant claims to be a national of Pakistan. While at my hearing he stated he has not renewed his Pakistan passport and he does not have a current Pakistan National ID card, he has produced his Pakistan passport and a copy of pages is on file. All the available evidence, including identity documents and the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity.
His health and mental health
Information before the Tribunal shows the applicant has medical and mental health problems. At the first Tribunal, the applicant’s representatives requested the hearing be rescheduled as the applicant had fallen ill. A medical certificate attached stated he had a ‘medical condition’ and was unfit for study from 25 July to 1 August 2014. However, Tribunal 1 advised him the hearing postponement was not granted based on the current evidence. The applicant did not show at the scheduled hearing on 29 July 2014. But the same day the applicant provided another medical letter dated 25 July 2014 that requested the hearing be delayed until he had a ‘complete medical assessment’. Tribunal 1 subsequently agreed to postpone the hearing to 30 September 2014.
Post-hearing the applicant’s letter of 6 October 2014 stated in part “I tried my best whatever happen to me in Pakistan and many things make me hurt again when I try to remember. Even there are many other things as well but it’s already past that’s why I want to delete from memories.” The letter then went on to discuss his problems at an Australian college and how he was a victim, and claims about conditions in Pakistan. He discussed how “My future is dark now no money no job even I’m hard worker quick lerner (sic) and good sports man and musician” and also “And in here after hard time and stress I’m also weak and sick”, and “If I go back I’m sure I will be killed and if I can hide myself for few days then may be sickness and depression will kill me”.
Also, Tribunal 1 referenced the following:
Letter from the applicant to the Tribunal dated 7 October 2014 stating that he was sick on the day of his interview and attaching requests (dated 1 August 2014) for imaging and pathology tests relating to cough and [Medical Condition 1].
In the Federal Circuit Court’s decision on 31 August 2016, a remittal reason for Tribunal 1’s decision was that the Tribunal failed to consider the applicant’s claims about his health conditions.
Subsequently, a Psychosocial report dated 27 April 2017 from the Counsellor Advocate at [a support organisation], has key points:
·The applicant had been referred to the counselling program in 2016 by his [caseworker] as he had been assessed with a range of conditions. The counsellor had been meeting him since August 2016.
·He presented as highly anxious and psychologically vulnerable, had expressed suicidal ideation and been placed on a register and was monitored and supported by staff, his psychiatrist and Community Mental Health services.
·He reported that: his concentration and focus is extremely poor; memory frequently fails him; his thought pattern is confused; his motivation is very low; high stress levels; exhaustion; nightmares and flashbacks.
·In counselling sessions he constantly talks about his fear of being deported to Pakistan and what will happen to him.
·The report concluded the causes of his mental health condition had been: his fear of return and what had previously happened to him there; as well, recent experiences of homelessness and financial hardship.
·The report advised that at a hearing, he may: have great difficulties recalling past events due to frequent memory lapses; become confused as to the order of events; be unable to answer questions coherently due to fear, confusion and high anxiety; experience disassociation; perform poorly on questioning.
·His prognosis was that he would continue to receive ongoing counselling and support and it is hoped his condition will improve somewhat; and he will need support and treatment for a considerable time.
·The report gives the opinion that he would be unable to access relevant and appropriate treatments in Pakistan.
A Psychiatrist report dated 9 May 2017, has key points:
·He had been a patient at [the support organisation] since November 2016. The author had ‘reviewed’ him four times, the last review on 7 May 2017.
·He has reasonable English and has not required interpreter assistance.
·When he first presented he reported increasing irritability over the past year and quarrelling at home, creating stress with his partner. He had lowered mood, lack of enjoyment, very poor sleep, decreased appetite, weight increase, poor concentration and felt tired. He reported suicidal thoughts when stressed which were never acted upon.
·Lately he experienced significant stress due to difficulty in finding appropriate housing, being unemployable, and being unable to provide for his family.
·In Pakistan in the year before he departed he reported he had not ventured out of home due to his fear of harm and he felt depressed and expressed suicidal thoughts. The episode subsided on its own.
·The report discusses his mental state examination.
·He was prescribed an anti-depressant but he discontinued it citing side effects.
·He attends counselling sessions at [the support organisation].
The report concludes (as summarised):
·He is suffering major depressive episode of moderate severity, associated with somatic symptoms.
·The major stressor contributing to his mental state appears to be his indeterminate migration status, which gave rise to secondary stressors such as inability to work due to lack of work rights; poor financial situation; uncertainty of future and fear of repatriation; along with poor psychosocial support.
·Repatriation could further affect his mental state and lead to deterioration.
·The report gives the opinion that it would be unlikely he would be able to access treatment in Pakistan given the resources there.
·The author does “not anticipate any significant improvement in his psychiatric condition until the present stressors are resolved”.
The applicant’s statement of 10 May 2017 indicated he had a number of health issues which would be impacted if he returned to Pakistan. His mental health is not very good, and while his partner is very supportive and he is connected with several health providers in Australia, he still has significant ups and downs. He finds the thought of return to Pakistan and potentially being separated from his partner and children very stressful. At times he had contemplated suicide and had been on medication for depression and sleeplessness. He also has [Medical Condition 1] which is particularly bad in winter. He believes government hospitals in Pakistan are not very good and private hospitals are very expensive, and he does not believe he will get the medical assistance and support he needs in Pakistan.
The representative’s submission dated 15 May 2017 stated the applicant suffered depression, anxiety, suicidal ideation, memory loss, poor concentration and sleeplessness. He often finds it difficult to discuss his protection claims, particularly with new people, and he becomes exhausted easily. The submission suggested he be considered a vulnerable person.
At Tribunal member 2’s hearing he stated he had counselling weekly and consults a psychiatrist every few weeks. He once took antidepressants for a few days. He often stays home and has stopped seeing friends and he has not told friends about his situation.
A report from a General Practitioner at [a health service provider] dated 6 January 2019 has key points:
·The applicant had attended their services since March 2018.
·He had mixed obstructive and restrictive [Body Part 1] disease caused by [Medical Condition 1] in combination with restrictive [Body Part 1] disease of uncertain cause. To date his treatment is two [medical device].
·He has likely [Medical Condition 2] and [Medical Condition 3] including [Medical Condition 4]. Given his family medical history he requires further investigation, monitoring and management.
·He has major depressive disorder and takes medication. He attends psychological support and therapy with a mental health social worker on a number of occasions. He reports irritability, persistently depressed mood, anxiety, negative thought themes, insomnia and previous suicidal ideation.
At the hearing on 11 June 2019 he stated he had medical conditions: [Medical Condition 1] (he takes medication daily); diabetes (he consults a dietician but does not require medication); back pain (he takes Panadol and other medication); depression (he takes medication daily). Concerning his mental health he discussed how he faced difficulties getting regular counselling through [a health service provider] and he had been unable to get a weekly consult as he would prefer. He indicated that in the past 12 months he had seen a psychiatrist half a dozen times or less and then a counsellor 3-4 times, and this would continue.
A report from a Mental Health Social Worker at [the health service provider] dated 6 January 2020 has key points:
·The applicant had been referred to their service in late March 2018.
·The Social Worker saw the applicant on several occasions between April and June 2019. The mental health team addressed his anxiety and depression, assisted with his distress tolerance and emotional regulation, and provided counselling support.
·He was referred to an external service for ongoing psychological support.
A report [dated] 6 January 2020 has key points:
·He had consulted since September 2019, concerning his current domestic situation and mental health issues.
·He has expressed concern related to his immigration status and uncertainty and the impact on his life and that of his family and marital situation. He had discussed his claims against Pakistan.
·The professional considers this would be exacerbated if he returns to Pakistan with or without the wife and children, and his mental health would deteriorate significantly.
·The professional believes he is genuine in a desire to develop his [skills] and work as a [Occupation 4] in Australia. He had worked and studied in Australia to achieve this goal, but complexities with his college made this impossible. Now with his wife who is studying [Discipline 2], he has demonstrated his passion and commitment to embrace Australian culture and raise his children here. He volunteers and assists at [Charity 2].
A report from [Charity 2] dated 8 January 2020 has key points:
·The applicant and family receive accommodation by [Charity 2] since March 2018. The charitable support he and the family receive was discussed.
·He has no contact with extended family in Australia to provide practical or emotional support.
·He receives psychological support.
As my foregoing discussion shows, at my hearing including when resumed, he presented well. He spoke through an interpreter albeit he appeared to understand English. At hearing on 16 December 2019 he said he had used an interpreter so that he could express things better. He listened to questions and gave comprehensive answers, and during our discussion ostensibly appeared to remember and then be able to discuss and comment on each element of his narrative including dates.
Conclusion - His health and mental health conditions
In sum, I have given appropriate weight to the expert reports provided. Considering the reports and information, together with the applicant’s evidence and submissions, I accept that the applicant has ongoing medical and mental health problems. His medical problems concern his [Body Part 1] and [Medical Condition 1] and related conditions, and he uses [medical device]. A medical report of 6 January 2019 stated he likely has [Medical Condition 2] and [Medical Condition 3] including [Medical Condition 4]. I accept his evidence at the hearing on 11 June 2019 that he had medical conditions: [Medical Condition 1] (he takes medication daily); diabetes (he consults a dietician but does not require medication); back pain (he takes Panadol and other medication).
His mental health problems concern anxiety and depression, and these have been attributed to his unresolved migration status and uncertainty and the impact on his life and that of his family and marital situation, his unsettled domestic circumstances, his subjective fear of returning to Pakistan.
In Australia the applicant has received treatment for his mental health problems that includes medication. He has consulted psychiatrists, counsellors and social workers. A [report] of 6 January 2020 shows the most recent treatment he has received has addressed his anxiety and depression, assisted with his distress tolerance and emotional regulation, and given counselling support. The most recent prognosis is that he will require ongoing treatment into the future.
In Australia the applicant has studied at colleges[3] from 2007 to 2010, he stated[4] he had worked at a [Business 1] and a [Business 2], he stated[5] he also does volunteer work. In the past he had socialised in Australia including with the MQM Australia and Minhaj-ul-Quran and attended Mosque, but at my hearing he stated he had largely withdrawn from those activities following the development of his relationship and the MQM political split. The recent expert opinion of 6 January 2020 discussed the applicant’s prospects in Australia and opined that the applicant is genuine in a desire to develop his [skills] and work as a [Occupation 4], and whilst he had worked and studied in Australia to achieve this goal it had been ‘complexities with his college, due to the misinformation that he had been given, made this impossible’.
[3] His application
[4] Tribunal 2
[5] My hearing and a [letter] dated 6 January 2020
As well, I have considered the recent expert opinion of 6 January 2020 about the effects on the applicant should he return to Pakistan and I note that the expert opined that the applicant’s stated subjective fear of harm in Pakistan is such that his conditions would be exacerbated if he returns to Pakistan with or without the wife and children, and his mental health would deteriorate significantly. I have given consideration to this opinion in my later discussion and findings.
His support of MQM and his Mohajir ethnicity
The applicant’s central claim is that he faced harm in Karachi because of his political activities before he departed. He claims to have come from a family of Mohajirs and MQM supporters in Karachi, and during his schooling he also joined MQM’s student wing (the APMSO).
As discussed at hearing, country information[6] shows that Mohajirs are notably present in the city of Karachi where they reportedly make up to half of the population and constitute the largest ethnic group, and the DFAT report Pakistan states the MQM has been a large and important political party in Karachi which advocates the rights of Mohajirs:
MQM 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.
[6] Immigration and Refugee Board of Canada report, Pakistan: Situation and treatment of Mohajirs…, 5 July 2012, [ the DFAT report Pakistan
In the application (his statement of 27 March 2013) he variously described: joining the MQM at [College 1] (para 3); deciding to be a ‘party person’ after he finished college (para 5); joining the MQM ostensibly before he was admitted to [College 2] (para 6); when he commenced his [degree] at [College 2] he joined the student wing (para 7). At the delegate’s interview[7] the applicant stated he joined the MQM when he started year [level], although he had no evidence of membership and he explained that no party identification was issued even for seniors. He then clarified he had joined the student wing APMSO and had remained a student wing member from 1998 to the time he departed Pakistan. He stated he arranged functions and peaceful protests and was just a worker and he was later appointed to be in charge of the college’s student wing and while there had recruited a number of members.
[7] As also discussed in the delegate’s decision at page 5-6, provided by the applicant to the Tribunal
At my hearing the applicant confirmed he had been an MQM student wing member in Pakistan. At hearing[8] he agreed that his party tasks had been at a low student level and he explained that student members start at a basic level. He stated that after the incident in 2001 he had stopped attending college altogether and instead, studied at home. After the incident when people pushed into the family flat, the family changed addresses and the applicant continued with home study. When I pointed out that he had then studied and worked in Pakistan in the period from 2001 to July 2007 without anything happening to him, he explained that the party seniors had indicated they wanted him to stay away from party activities and to focus on other things. MQM leaders had gone to JI to negotiate on the applicant’s behalf, and he was told to stay home and he did not go out that much. On occasion he would be picked up in a van with other workers and he was observed, but he did not have a lot of duties. The family all moved to his sister’s home and he agreed that he had been safe once they moved.
[8] On 4 February 2020
At my hearing he stated he continues to support the MQM, but following the party split into two factions he now supports the MQM that is led by Altaf Hussain, which is called MQM-London or just MQM. He stated he had been a [Position 1] for MQM in Melbourne but when the party split and in light of his relationship he relinquished the position and he told them he wanted to go to the ‘backbench’. He has withdrawn from involvement in party activities and the last activity he attended had been to pray after the New Zealand shooting.
In sum, based on the applicant’s consistent evidence about his family and his support of the MQM I accept that he comes from a family of Mohajirs and MQM supporters in Karachi, and during his schooling he joined the APMSO. Indeed, country information shows that Mohajirs have long supported the MQM that at times was a dominant party in Karachi and it had been commonplace for a Mohajir man to be a MQM supporter/member.
I find that his party involvement in college had been low level with basic tasks such as manning a party stall and seeking to recruit and recruiting other students. I accept, as he claims, that there had been arguments and pushing and shoving at college by supporters of other parties. On one occasion following an argument he was taken in a vehicle and his possessions stolen before being dropped off. On some occasions people came to his home and once pushed past his father and yelled at him. He does not claim despite ample opportunity that he was ever seriously physically harmed or hospitalised. Nonetheless, as discussed at hearing, from 2001 he finished his studies through home study and the family moved addresses and he stated he had then been safe. He indicates that after 2001 he had scant party duties and indeed had been told by the party to stay away from party activities and to focus on other things.
His application shows he completed study at [College 2] in 2004. While living with his family, he then worked as a [Occupation 1] (August 2004 to November 2005) and [Occupation 2] (December 2005 to November 2006), undertook a [Discipline 1] course (2006 to 2007) and worked as an [Occupation 3] at [a workplace] (February to April 2007). At hearing he explained he had got temporary work as a [Occupation 1] through a friend of his father, and the work at a [business] because his sister used to work there and he had not wanted to stay at home.
As discussed at hearing, in his narrative the harassment and harm he faced at college because he was a party member of the student wing did not continue after he stopped attending at the college and changed addresses. As well, he chose not to undertake any significant party tasks after college and ostensibly his party profile did not attract opposition party adverse attention after 2001. I note that the applicant claims he had not ventured out of home due to his fear of harm, however, I do not accept this claim in light of the lack of any harm and occurrences for several years after 2001, and the foregoing information about his studies and work in Karachi in 2006 and 2007.
In sum, I find that the applicant had low level involvement in the MQM party at the time when he attended college, and the harm he suffered at the hands of other party activists did not amount to serious physical harm. Then, after 2001 he had limited and low level party involvement. During the long period from 2001 to 2007 he attended courses and worked and did not suffer harm from other party activists or any other agents. In light of the evidence and my findings I do not accept he was on a ‘hit list’ of jihadists and opposition parties at the time he departed Pakistan.
I accept the applicant joined the MQM group in Melbourne and for a time was [Position 1] in Melbourne. He has provided information and photos showing his participation including [in specified role] and at ostensibly small protests, and at the delegate’s interview[9] he described his early participation [in specified role and as a] worker. At hearing he stated that he withdrew from party activities in recent years, and when I asked whether he got assistance from the Muslim community he stated he now has no contact with them.
[9] As discussed in the delegate’s decision at page 6-7, provided by the applicant to the Tribunal
In sum, I do not accept that his low key participation in party activities mainly in Melbourne and largely internally in the group in Australia, and his scant community activities in Australia, led him to come to the adverse attention of jihadists and opposition parties or any other agents in Pakistan. I do not accept that any of his political or party activities outside of Pakistan and in Australia led him to be subsequently included on a ‘hit list’ of jihadists and opposition parties or any other agents. I find that he has never been on a ‘hit list’ of jihadists and opposition parties or any other agents.
Family members harmed
The applicant claims that other family members have been harmed and bullied by anti-MQM activists. He claims an uncle was killed by People’s Party of Pakistan (PPP) activists and he provided a death certificate for [Mr B] that showed ‘Target shoot’ and death [in] April 1995 in support. Country information[10] shows there had been political violence in Karachi between the MQM and the PPP during those years, and the Canadian report stated in part:
In recent years, politics in Karachi has been dominated by bitter conflict between former prime minister Benazir Bhutto's Pakistan People's Party (PPP) and the MQM, a conflict that contributed to the dismissal of both Bhutto national governments, in 1990 and 1996 (Country Reports 1996 1997, 1465; Asian Survey July 1996c, 671; Jane's Intelligence Review July 1996).
[10] Canada: Immigration and Refugee Board of Canada report, UPDATE ON THE MOHAJIR QAUMI MOVEMENT (MQM) IN KARACHI, 1 June 1997, [ type="1">
I accept an uncle who had been an MQM activist was killed in a political shooting. Nonetheless, as discussed at hearing, this occurred in April 1995 when the applicant was age [age]. The applicant living with his family continued to reside and study in Karachi immediately after the killing and it did not show that the applicant had also been targeted by the PPP activists. The death occurred when the applicant was a young teenager over 24 years ago and is distant in time. I do not accept the uncle’s death shows that the applicant faces harm in Karachi now and in the reasonably foreseeable future.
The applicant claims that a brother had had a [shop] selling [specified goods] and JI supporters often attacked and threatened the brother. He told the Tribunal the brother had the shop up to 2005 or 2006. I cannot discount the possibility a brother had difficulties operating a business at some time in the past. However, the brother’s difficulties did not cause the applicant to be harmed and are now distant in time, and as discussed at hearing I do not accept the brother’s past difficulties show the applicant will face harm on his return to Pakistan. As well, he claims his sister was bullied at school because of her gender. While this shows females may have difficulties studying in Karachi, these occurrences are in the distant past. I do not accept the difficulties she had at school shows that the applicant faces harm in Karachi now and in the reasonably foreseeable future.
His support of Minhaj-ul-Quran
On the basis of his evidence including a Minhaj-ul-Quran International Victoria card showing he is a ‘[Position 1]’, I accept he supports the Minhaj-ul-Quran movement in Australia.
Conclusion- credibility
In sum, having considered the claims and evidence, I accept his claims that:
·He and his family are Mohajirs and were Muttahida Quami Movement (MQM) supporters. An uncle was killed by People’s Party of Pakistan (PPP) members when the applicant was age [age].
·At college he joined the MQM student wing- the All Pakistan Mohajir Students Organisation (APMSO). There had been political violence on campus, he was bullied at school, including because he had female friends, and because he would not stop playing in the [sports] team.
·He was once kidnapped and bullied/hit by JI activists, they stole his things and then released him.
·On one occasion people force their way inside the family flat and pushed the father very forcefully and shouted at the applicant and threatened him. He feared to return to college after this, and instead studied and completed his studies at home.
·The applicant’s brother had a [shop] selling [specified goods] and JI supporters had attacked and threatened the brother.
·In Australia he had been involved with the MQM. He has had scant contact with them in recent years.
·In Australia he had joined the Minhaj-ul-Quran organisation and had participated in some activities.
Having considered the claims and evidence, I do not accept that he has ever been on a ‘hit list’ of jihadists and opposition parties or any other agents.
Conclusion
I now assess whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if he returns to Pakistan, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonable foreseeable future.
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature Muslim Sunni man, of the Mohajir ethnic group, who comes from an unremarkable family in Karachi, Sindh province. He is well-educated having completed his secondary schooling in Pakistan in 1999 and then tertiary courses from 2001-2004 and 2006-2007. As well, he had several periods of work in Karachi in different fields. All of his family reside in Pakistan, but for a married sister in Australia: his parents, [number of] brothers and [number of] sisters. The applicant does not claim, despite ample opportunity, that his immediate family have suffered harm in Karachi since he travelled to Australia as a student.
He arrived in Australia on a Student visa [in] July 2007 at age [age] and he studied at college. He has now been here, living independently, for twelve years, and in recent years he has been supported by charity. [In] December 2018 he married a [Country 1] national who had been in Australia on a Student visa, and they have two children now aged [age] and [age] years.
Karachi is where he last resided and where immediate and extended family continue to reside, and so I find it is most likely that if he returns to Pakistan he would return to Karachi.
His travel to Pakistan as a returnee from the West
I am satisfied the applicant will be able to travel to and enter Pakistan. As discussed at hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport, and the Tribunal sighted and has a copy of the personal details page of his Pakistan passport that expired [in] 2015. While he does not hold a current Pakistan passport and National ID card, as I pointed out at hearing, he would be able to evidence his Pakistan nationality and if necessary the Department would be able to assist him to get a fresh passport or travel document and so will be able to travel to and enter Pakistan without difficulty.
I discussed the following including country information at hearing. He would enter Pakistan as a Pakistan national who had last departed that country legally and in the usual way, and as a man who had lived away for a number of years but was now returning on a Pakistan travel document. The DFAT report Pakistan[11] shows that in such circumstances he would be typically processed like any other citizen returning to Pakistan, or as an involuntary returnee he would typically be questioned upon arrival to ascertain whether he left the country illegally, or is wanted for crimes in Pakistan, or had committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a few hours.
[11] Para 5.37 to 5.42
In sum, whether or not he returns voluntarily, country information does not show that the way he departed Pakistan or anything he had done in Australia including his residence and attempts to migrate would cause him to face harm on his return. I do not accept he would attract the adverse interest of Pakistan authorities beyond being questioned and soon released. My foregoing discussion set out the applicant’s medical and mental health conditions, including anxiety and depression. However, I do not accept that on entering Pakistan and being questioned by the Pakistan authorities, these vulnerabilities would make him more susceptible to harm rising to the level of serious or significant harm.
I discussed the following including country information at hearing. While he has been away from Pakistan for many years, he would be returning to the Karachi metropolis where he was raised, educated and worked. He has family members in Karachi, he continues to be a practising Sunni, and in these circumstances he should well be able to reintegrate into the Pakistan and/or Mohajir community there. While he has adjusted to life in Australia initially as an overseas student, country information[12] shows that western influence is pervasive in many parts of Pakistan, particularly in large urban centres such as Karachi, and many Pakistanis have relatives in western countries and many more aspire to migrate abroad, with those living abroad returning to Pakistan frequently to visit relatives. As well, it is not unusual for an urban Pakistan national to have travelled and stayed abroad. DFAT assesses[13] that returnees to Pakistan are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt and returnees do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.
[12] DFAT report Pakistan 2017 at para 3.139
[13] DFAT report Pakistan, para 5.44, 5.45
Having considered his personal circumstances and in light of country information I find there is not a real chance he will face serious harm, or for complementary protection purposes a real risk of significant harm, in Karachi because of being a returnee (whether or not involuntary) who had attempted to migrate and was a failed asylum seeker and had lived in a western country.
His wife and children
The applicant has a wife and two children. The wife is a [Country 1] national and [is non-Islamic]. The applicant claims he fears to return to Pakistan:
·Due to the circumstances of his marriage to a woman of different religion, ethnicity and nationality, and their children.
·Because his marriage would not be recognised in Pakistan.
·Because of probable social discrimination, harassment and violent reprisal due to their differing religions and perceived illegitimate children.
At hearing the applicant stated he did not think he could take the family to Pakistan and he could not force her to go. The wife is a [Country 1] national who wishes to continue studying in Australia. At my hearing she stated that her Student visa application had been refused but her appeal was currently with the Tribunal and had not been resolved. I asked her what she would do if her husband had to depart Australia and she responded that she had been studying when they met and she would want to continue studying. I put to her that her evidence is therefore that she would remain in Australia, and she responded that in the future she would look after herself and it is better if she gets a qualification. I queried what she would do if the Tribunal affirmed the Student visa refusal, and she responded that maybe she would look for another country. When I pointed out she would have limited time to depart, she responded that if she returns to [Country 1] she would have no support as her family are not happy that she has married with children. I pointed out that her evidence appears to be that she would not go to Pakistan, and she responded and agreed that the reason is because of religion- she does not want to be forced to become a Muslim- and the religion does not approve of children born before marriage. At hearing I next spoke to the applicant and discussed the wife’s evidence that she and the children would not accompany him to Pakistan. He agreed and explained that this is because she is very scared of going to Pakistan and she had been questioned about her religion when she attended the Mosque with him. The representative submitted that if the applicant returned to Pakistan without his wife and children, he would suffer significant psychological harm, and it is in the best interests of the children that the father be with the children.
Section 36(3) There is a qualification in s.36(3) that provides Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. Section 36(3) of the Act does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[14] Considering the scope of the ‘liberty, permission or privilege lawfully given’ test, the Federal Circuit Court has held that s.36(3) incorporates the following: a right to claim, against the appropriate state organ, entry and residence (and a corresponding duty on the state organ to grant such entry and residence); or a privilege, liberty or permission to enter and reside, whether or not that privilege, liberty or permission is revocable; and also a right that will arise on satisfaction of certain pre-conditions.[15]
[14] MIMAC v SZRHU (2013) 215 FCR 35. Buchanan J (at [89]), all other members of the Court agreeing, endorsed the construction by Allsop J in V856/00A v MIMA (2001) 114 FCR 408. The Full Court rejected the construction that s 36(3) required a legally enforceable right which had been stated in Applicant C v MIMA [2001] FCA 229 at [28], Kola v MIMA [2001] FCA 630 at [36], and upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively
[15] SZTOG v MIBP [2015] FCCA 180 at [32] and SZTQN v MIBP [2015] FCCA 188 at [25]
As discussed at hearing, country information[16] shows that as the spouse of a [Country 1] citizen he would (with the support of his wife) be able to apply for residence in [Country 1] with a [VISA]. As the holder of a [VISA] he would be eligible to apply for [Country 1] citizenship.
[16] [Information deleted]
However, the requirements for applying for a [VISA] lead me to find that the applicant does not have a right to enter and reside in [Country 1]. First, he would need his wife to support an application, and her evidence is that she does not wish to return to [Country 1] and is currently not planning to return to [Country 1]. Second, the requirements for the [VISA] include an original household registration issued in the recent three months. However, the only household registration available to the wife is that of her parents and so the availability of a valid household registration is dependent on other parties who are potentially unwilling to include the applicant in their original household registration.
Third, another requirement is a marriage certificate issued by the applicant’s government. This would require the applicant to register the marriage in Pakistan. However, as discussed at hearing, country information shows that the applicant’s marriage would be unlikely to be recognized in Pakistan. The UK Home Office Country Information and Guidance Pakistan: Interfaith marriage, January 2016[17], states that: under Islamic law Muslim men can marry other Muslim, Christian or Jewish women (who are considered “People of the Book”); but that Islamic law does not recognise Muslim marriages to Hindus or Sikhs. In light of this country information I am not satisfied that the applicant’s marriage according to the rites of The [Organisation 1], to the [non-Islamic]wife, would be recognised as legal in Pakistan. I am not satisfied that the applicant would be able to register the marriage in Pakistan.
[17] Paragraphs 2.2.1 and 7.1.1
In light of three of the requirements for applying for the [VISA] which are dependent on the agreement of other people and the Pakistan authorities, together with the discretion of the [Country 1] authorities as to whether to grant a [VISA], I am not satisfied that the applicant has a right to enter and reside in [Country 1] for the purposes of s.36(3).
The applicant’s return to Pakistan without his wife and children I have considered his circumstances in Pakistan in light of the evidence of the applicant and wife that the wife and children would not accompany him or seek to travel to Pakistan now and in the reasonably foreseeable future.
At hearing the applicant’s evidence is that his close family knows he is married to a woman of [Country 1] ethnicity, but he has not told them it was a [Organisation 1] ceremony and that his wife is not a Muslim. He explained that his wife had attended his Mosque in Australia and been observed there. His sister in Australia- who saw the applicant and wife at Mosque and who observed the wife’s ethnicity- was accepting and inquisitive about the wife but the sister was not told the marriage details or that the wife is not Muslim. The applicant did not have concerns with revealing to the community and his close family, the ethnicity of the wife and mixed ethnicity of the children. However, the applicant’s evidence is he has chosen not to tell the Muslim community in Australia or even his close family including a sister who lives in Australia, that his wife is not Muslim and that they had not married in a Muslim ceremony, and that the children had been born out of wedlock. He has chosen not to seek to register his marriage, wife and children with the Pakistan authorities. He led people to believe that he had married a Muslim. He has chosen to keep secret the particular circumstances of his marriage and the circumstances of his children’s births.
In light of the fact that he has chosen not to tell the particular circumstances of his marriage and children to people in the Muslim community in Australia, to his sister who has met them in Australia, to the Pakistan authorities or to any person in Pakistan including his close family, I find that on his return to Pakistan expecting him not to tell people of these particular circumstances is not requiring modification of behaviour.
After entering Pakistan, the applicant would reasonably seek to have contact with his wife and children who remained overseas, but such contact would be able to be conducted privately. Such contact would not require him to approach the Pakistan authorities or require him to reveal to anyone the particular circumstances he has chosen to keep secret. I do not accept there is a real chance that his residence in Pakistan together with his ongoing contact with his wife and children who remained overseas, would draw attention to his wife’s religion, the circumstances of the perceived illegitimate marriage or the circumstances of the children’s births.
In these circumstances, and in light of the evidence that the wife and children would not accompany him or seek to travel to Pakistan now and in the reasonably foreseeable future, I find that when he returns to Pakistan, there is no real chance that the Pakistan authorities or anyone would find out about his wife’s religion, the circumstances of the perceived illegitimate marriage or the circumstances of the children’s births, now and in the reasonably foreseeable future. I find that on his return to Pakistan without his wife and children, there is no real chance he would be harmed by the Pakistan authorities, the community, his close family or by any agent because they had not accompanied him.
Ostensibly the applicant had no strong concerns with introducing his ethnically [Country 1] wife to the Muslim community in Australia and to his sister/close family who know and accept she is of [Country 1] ethnicity. At hearing he did not claim despite ample opportunity, that his family in Pakistan would seek to harm him because of the ethnicity or nationality of his wife and children. As the wife and children will not live in Pakistan, the general community would not observe and react to their ethnicity. Accordingly, I do not accept there is a real chance that the ethnicity and nationality of his wife and children who would be overseas, would attract the adverse attention of any agents in Pakistan or would lead the applicant to face serious or significant harm in Pakistan, now and in the reasonably foreseeable future.
In light of my foregoing discussion and findings, I find that there is not a real chance the particular circumstances of his marriage, wife and children would lead him to face serious harm (or for complementary protection purposes a real risk of significant harm) from his family, the Pakistan authorities, the community or any other agents in Pakistan, now and in the reasonably foreseeable future. I do not accept there is a real chance he would be harmed in Pakistan for any of the reasons he claims when considered separately or together:
·Due to the circumstances of his marriage to a woman of different religion, ethnicity and nationality, and their children.
·Because his marriage would not be recognised in Pakistan.
·Because of probable social discrimination, harassment and violent reprisal due to their differing religions and perceived illegitimate children.
·Religion: He fears JI activists will harm him as they will view his practice of Islam as un-Islamic.
·Religion: He fears that should he return and take his wife and children, they would all face harm because his wife is non-Islamic [and] his children were born out of wedlock.
His medical and mental health
In light of my foregoing discussion of the applicant’s medical and mental health, I find that he has a range of medical conditions including: [Body Part 1], [Medical Condition 1] and related conditions for which he uses [medical device] and medication; he likely has [Medical Condition 2] and [Medical Condition 3] including [Medical Condition 4]; diabetes (he consults a dietician but does not require medication); back pain (he takes Panadol and other medication). His mental health problems concern anxiety and depression, and these have been attributed to his unresolved migration status and uncertainty and the impact on his life and that of his family and marital situation, his unsettled domestic circumstances, his subjective fear of returning to Pakistan. In Australia the applicant has received treatment for his mental health problems that includes medication and the most recent treatment he has received has addressed his anxiety and depression, assisted with his distress tolerance and emotional regulation. The most recent prognosis is that he will require such ongoing treatment into the future.
In Australia he has studied and worked for periods, he socialised in the Muslim community, attended Mosque, and socialised and did tasks for Melbourne’s Pakistani MQM community. In recent years he and his family have subsisted on charity and he almost fully withdrew from his MQM activities after the MQM split after late 2016, and he stopped socialising in the Muslim/Pakistan community and stopped attending Mosque because of his relationship and wife. He nonetheless does volunteer work and an expert opined that in Australia the applicant would have a desire to develop his [skills] and work as a [Occupation 4].
A submission submitted that because of his health conditions the applicant is especially at risk from the current COVID-19 pandemic. The representative also submitted that the applicant fears JI activists, other Islamic groups or other political agents will harm him because of his Mohajir ethnic group, and as he comes from a minority ethnic and language group in Pakistan, he would, in all probability, be unable to access support or care, even in the event that effective therapies or vaccines become available. However, as discussed at hearing, country information[18] shows basic health care in Pakistan is free and available to all. Albeit limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility. In Karachi there are major and well-regarded government hospitals as well as non-government organisations and free mental health services are available. I find that in Karachi he will be able to seek and get medical care and medication for his conditions that would not be withheld from him for reason of his ethnicity and language. He will be able to seek and get psychological and counselling assistance, as well as medication, should he require it in the future.
[18] Ibid, para 2.22; Karwan-e-Hayat Institute for Mental Health website, [ Transparent Hands article, List of Top 5 Government Hospitals in Karachi, 12 September 2017, [ Mental Health NGOs in Pakistan: List of NGOs in Pakistan Working for Mental Health Care and Awareness, [>
An expert opinion of 6 January 2020 opined that the applicant’s stated subjective fear of harm in Pakistan is such that his conditions would be exacerbated if he returns to Pakistan with or without the wife and children, and his mental health would deteriorate significantly. However, in returning to Karachi he would be returning to a city where he had been raised, lived, studied and worked. He has close family in Karachi and ostensibly relatives and old friends. He would be able to seek and get mental health services. In light of the foregoing discussion and findings and having particular regard to the nature of the conditions and symptoms discussed in the reports, his mental health needs here, and his account of his psychological state- I am not satisfied the applicant will have psychiatric disorders that will attract the adverse attention of the authorities or community in Pakistan such that they will seek to harm him. In Pakistan, I am not satisfied there is a real chance that now and in the reasonably foreseeable future his psychological and medical conditions will result in him experiencing serious harm such as a threat to his life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens his capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.
For the purposes of complementary protection, ‘Significant harm’ is exhaustively defined in s.36(2A): s.5(1). 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. In light of the foregoing country information, discussion and findings I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
His support of MQM and Mohajir ethnicity
In my foregoing findings I accept that the applicant and his family are Mohajirs and MQM supporters; at college he joined the MQM student wing (APMSO); the family’s party support led to difficulties and an uncle was killed; his party support led to difficulties and at times harm.
However, the harassment and harm the applicant faced at college because he was an APMSO member did not continue after he left college, and he did not undertake any significant party tasks after college and ostensibly his party profile did not attract opposition adverse attention after college. I do not accept he was ever on a ‘hit list’ of jihadists or opposition party activists. He remained living in the family home, studying and working without harm, from 2001- now 19 years ago- to 2007 when he departed Pakistan- now 13 years ago. The adverse attention he faced as an APMSO member at college and before he departed Pakistan is distant in time and I do not accept any party or agent continues to have an adverse interest in him. I do not accept that his past party support and past activities will cause him to face a real chance of serious harm in Karachi now and in the reasonably foreseeable future.
As well, in my foregoing findings and as discussed at hearing I do not accept the uncle’s death in 1995, now 25 years in the past, shows that the applicant faces harm in Karachi now and in the reasonably foreseeable future. I do not accept that the difficulties faced by the other family members before the applicant departed Pakistan led the applicant to be seriously harmed, and I do not accept those past difficulties will lead the applicant to face a real chance of serious harm in Karachi now.
In my foregoing findings I accept the applicant joined the MQM group in Melbourne and for a time was [Position 1] in Melbourne. He has provided information and photos showing his participation including [in specified role] and at ostensibly small protests, and at the delegate’s interview he described his early participation [in specified role and as a] worker. But he withdrew from party activities and from the Muslim/Pakistani community in recent years. In light of his low key participation in party activities mainly in Melbourne and largely internally, and now several years in the past, and his scant community activities, I do not accept there is a real chance his party involvement in Australia, and/or together with his past party involvement, would lead to him facing harm in Karachi now and in the reasonably foreseeable future. I do not accept he is on a ‘hit list’ of jihadists and opposition parties or any other agents.
100.At hearing he stated he would support the MQM-London (MQM) on his return. I accept that he will continue to support the MQM in Karachi Pakistan on his return. However, I find that he will do no more for the MQM in Karachi than he has done in the past, and indeed he did not undertake any significant party tasks in the years after college before he departed Pakistan, and so he would do low level party tasks if at all, in the reasonably foreseeable future.
101.As well, the applicant states he is against violence and I find he would support the party peacefully and not become involved in violent or extreme political activities on his return to Pakistan.
102.Country information including information provided by the applicant shows that broadly, the security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. But as discussed at hearing, in recent years the political and security situation in Karachi has changed significantly, and particularly since he lived there. My discussion encompassed country information, including reports[19] provided by the applicant, that show:
[19] EASO Pakistan Security Situation report, October 2019; US Country report Pakistan 2017
·While militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces, the overall security situation across Pakistan and including in Karachi and Sindh province has improved since the Pakistan armed forces launched several security operations. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the government’s National Action Plan (NAP) with a significant reduction in the number of violent and terrorism related attacks in Pakistan. Militant groups such as the Taliban (TTP) have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years.[20]
[20] DFAT report Pakistan, para 2.75 - 2.82, 3.166
·Security forces have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. Major cities including Karachi and Lahore generally have higher levels of violent crime than Islamabad, due to the large number of security personnel deployed in Islamabad relative to its population. The Rangers (a federal paramilitary force) and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. DFAT assesses that, while verifiable data remains unavailable, serious crime across Pakistan and especially in Karachi has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.[21]
[21] Ibid, para 2.97 - 2.99
·In 2013 the Rangers commenced operations in Karachi that has significantly reduced political violence.[22]
[22] Ibid, para 3.164
·The MQM leaders claimed the Rangers disproportionately targeted MQM with enforced disappearances, extra-judicial killings, and detentions. But subsequently, MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.[23]
[23] Ibid, para 3.164 - 3.165
·Ructions in MQM’s leadership following a controversial address by exiled leader Altaf Hussain in August 2016, led to the party splitting into MQM-London (Altaf Hussain) and MQM-Pakistan. The government formally recognised MQM-Pakistan (MQM-P) and its former leader Farooq Sattar, who was later replaced by Khalid Maqbool Siddiqui in February 2018. MQM’s political influence has diminished in the wake of the July 2018 general election when it went from holding 50 seats to just 21 seats in the 167-seat Provincial Assembly of Sindh; and while it remains a political force, leadership and faction conflicts have affected performance.[24]
[24] Ibid, para 3.163, 3.167 - 3.168
·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. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.[25]
[25] Ibid, para 3.163, 3.166
103.As discussed at hearing, DFAT makes the broad assessment 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. In sum, while MQM supporters/members in Karachi still face anti-MQM rhetoric, discrimination and violence- country information shows the chance of violence from militant groups and criminal elements is low. In light of my foregoing discussion that on returning to Pakistan/Karachi his party support will be at a low level and peaceful, I am not satisfied he would become involved in violent or extreme political activities. I am not satisfied he would be associated with (or perceived to be associated with) political violence and/or criminal activities in Karachi and Pakistan.
104.Based on the foregoing country information and findings, I find that in the reasonably foreseeable future his party membership and tasks and the activities he would undertake on his return would not lead to a real chance of him coming to the adverse attention of anti-MQM activists from other parties including JI, or militant groups including the Taliban, or criminals.
105.I find that in the reasonably foreseeable future his profile as a returnee from a Western country who had been away from Pakistan and Karachi for a very long time, together with his party membership and tasks and the activities he would undertake on his return, would not lead to a real chance of him coming to the adverse attention of the security forces (Rangers, police, other authorities).
106.The applicant and his family are Mohajirs, however, beyond their connection with the MQM party, I find that as a Mohajir he has not faced harm or discrimination rising to the level of serious harm before he departed Pakistan, and on return to Karachi he does not face a real chance of serious harm (or for complementary protection purposes a real risk of significant harm) now and in the reasonably foreseeable future. He is an Urdu speaker, however, Urdu and English are the official languages of Pakistan, and as the applicant acknowledged Urdu is widely spoken in Pakistan and particularly Karachi.
107.In sum, I find that he does not have a well-founded fear of persecution for reason of his MQM political opinion (actual or imputed) or because he is from an MQM supporting family or because of his Mohajir ethnicity or because he speaks Urdu and English. As well, in light of the foregoing country information, discussion and findings I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
His support of Minhaj-ul-Quran International
108.On the basis of his evidence including a Minhaj-ul-Quran International Victoria card showing he is a ‘[Position 1]’, I accept he supports the Minhaj-ul-Quran (MQI) movement in Australia, and would continue his support on return to Karachi Pakistan.
109.The MQI website[26] states in part that:
[26] [ International, a Pakistan-based international organization working to promote peace, tolerance, interfaith harmony and education, tackle extremism and terrorism, engage with young Muslims for religious moderation, promote women’s rights, development and empowerment, and provide social welfare and promotion of human rights.
In order to promote and propagate true Islamic teachings and philosophy, revive Islamic sciences, and for the moral and spiritual uplift of Muslim Umma, dissatisfied with the existing religious institutions and organizations and their narrow-minded approach, Dr Qadri founded Minhaj-ul-Quran in 1980. Headquarters of MQI are situated in Lahore. Vigorously pursuing its well-defined objectives and spreading its comprehensive and all-encompassing sphere of activity, including welfare, education, promotion of love culture and spiritual uplift all over the world, it is probably one of the largest non-political, non-sectarian non-governmental organizations in the world. Since its establishment on 17th October 1980, it has rapidly grown and, within less than 30 years, its organizational network has expanded to more than 90 countries worldwide. Minhaj-ul-Quran is unmatchable for its rapid growth and no contemporary religious or political organization or movement has spread worldwide in such a short span of time.
110.As discussed at hearing, I have examined a number of reports and sources concerning Pakistan and Karachi[27] and have not identified any reference to MQI members/supporters facing harm as a result of their support. The applicant has not provided any reports that show MQI members/supporters face a real chance of serious harm amounting to persecution as a result of their support. In sum, I find that as an MQI member/supporter he does not face a real chance of serious harm now and in the reasonably foreseeable future in Karachi, and he does not have a well-founded fear of persecution. As well, in light of the foregoing country information, discussion and findings I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
[27] DFAT report Pakistan; The monthly summaries of conflicts in Pakistan provided by International Crisis Group CrisisWatch, Pakistan, using filters for country and range of months, [ The summaries of conflicts and events in Pakistan provided by South Asia Terrorism Portal, using filters for country, region, and range of years, [ I consider together all of my findings about his narrative and evidence including those claims that I accept, and all of the applicant’s personal circumstances including his medical and mental health conditions, his ethnicity, family situation, family background and returning from Australia, I do not accept that in Karachi Pakistan now and in the reasonably foreseeable future he faces harm from: the Jammit-e-Islam activists; PPP activists; other political party activists; militants including the Taliban; criminals, or the security forces (Rangers, police, other authorities); the Pakistan military; or from any other agents or the general community. I find there is not a real chance of serious harm amounting to persecution (or for complementary protection purposes a real risk of significant harm) to him now and in the reasonably foreseeable future in residing in Karachi, for the reasons he claims, either when considered individually or cumulatively.
112.I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Karachi, for any other of the Convention reasons either when looked at individually or cumulatively. I do not accept either that the applicant departed Pakistan so as to escape feared harm (such as threats, intimidation, physical or other harm) from any agents there. I conclude the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Pakistan and to Karachi. I conclude there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.
Refugee criterion
113.In light of the above assessment, the Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Pakistan.
Complementary protection
114.I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Pakistan, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
Overall Conclusion
115.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).
116.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
117.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
118.The Tribunal affirms the decision not to grant the applicant a Protection visa.
C. Packer
MemberATTACHMENT A – RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). 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.
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.
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: s.91R(1)(a) of the Act.
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.
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.
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
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Standing
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Appeal
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Citations1614937 (Refugee) [2020] AATA 1709
Cases Citing This Decision0
Cases Cited8
Statutory Material Cited0
Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630SZTOG v Minister for Immigration [2015] FCCA 180