1622355 (Refugee)

[2020] AATA 1894

1622355 (Refugee) [2020] AATA 1894 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622355

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Lilly Mojsin

DATE:18 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 May 2020 at 9.50 am

CATCHWORDS

REFUGEE – protection visa – Pakistan – love marriage – assaults, threats and pressure to divorce by brother-in-law – claimed secret wedding – country information – religious and legal requirements for weddings, including consent and witnesses from both families – general security situation – inconsistent evidence – possible fraudulent police report – brother-in-law’s political connections – second applicant left Australia, so cannot be granted protection visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 65, 424AA

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

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 applicants Protection visas [PV] under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 8 December 2014 and the delegate refused to grant the visas on 29 November 2016.

3. The applicants appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

4. The 1^st named applicant [applicant] appeared before the Tribunal on 28 February 2020 and 14 May 2020 to give evidence and present arguments.  He advised the Tribunal that the 2^nd named applicant had returned to her family in Karachi, Pakistan, in 2018, with their son who was born in Australia.

5. So far as is relevant to the 2^nd named applicant, s.36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the named applicant is in Australia.

6. The applicant advised the Tribunal that the 2^nd named applicant was no longer in Australia. The 2^nd named applicant did not attend the Tribunal hearing. A submission received by the Tribunal from 2^nd named applicant stated that she is not in Pakistan. The Tribunal is satisfied the 2^nd named applicant is not in Australia. Therefore, the 2^nd named applicant does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

7. Having reached this conclusion, it is not necessary to consider the 2^nd named applicant's substantive application for the grant of the visa.

8. The 2^nd Tribunal hearing was held on 14 May 2020 during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a 2^nd hearing by telephone, having regard to the nature of this matter and because the Tribunal needed to clarify some issues with the applicant that had arisen during the 1^st Tribunal hearing.  The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the review if the hearing was not to be conducted by telephone.

9. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal, in support of the review.

   RELEVANT LAW

10. See annexure A

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant claims he is a Pakistani national of Islam Sunni religion born in [Year] in Chakwal City, Punjab Province, Pakistan where he received his school education and then studied [Subject]. The applicant claims that he fears harm on his return to Pakistan at the hands of his brother-in-law.

12. In his PV, the applicant claimed that he returned to Pakistan in March 2014 to visit his family. His wife was living with her parents and brother at that time. He went to meet his wife and his brother-in-law caught them. His brother-in-law and friends beat up the applicant. He claims his brother-in-law, [Mr A], will kill him if he returns because the applicant has a love marriage with his wife. Her family does not approve of the love marriage and believes in an arranged marriage. The couple married without her family consent. They are not accepting of their marriage and are very aggressive. The applicant claimed that the parents of his wife tried to hide their daughter was married from the community. They "pushed her" to divorce him but they wanted to avoid the court proceedings.

13. The applicant attended a Department interview. At that interview the applicant further stated:

    ·nobody else knew about their marriage.

    ·he and his wife did not live together after the marriage because they did not want her parents to know about it.

    ·they were afraid "her father would kill her as she married without his approval."

    ·his wife's father did not have any influence in the family and that the father was not respected by the family because he had a second family.

    ·his marriage was only witnessed by his sister's husband.

    ·on several occasions from 2009 onwards his parents tried to persuade the parents-in-law to give their permission. His parents also involved community leaders to persuade her parents, but they have always refused.

    ·his wife's sister knew about their marriage and was helping them, but nobody else knew about their relationship.

    ·his wife has never been and was not in any danger from her family and he was only seeking protection because he feared the brother of his wife.

    ·his wife’s parents found out about their marriage in January 2014 when they saw the passport and her visa papers. They beat her when they saw the papers.

    ·they did not beat her badly; they just were pushing her to divorce him.

    ·the reason her father was against their marriage because they did not like him.

    ·her parents accused him of not marrying their daughter and also that he kidnapped her, 11 months after discovering their daughter was married they accused him of not marrying their daughter.

    ·in March 2014 he travelled to Pakistan to apply for his wife's visa and also to convince her family to allow her to travel to Australia.

    • he called and spoke to her family who agreed to meet with him. He and his brother met with her brother because her father was not at home 28 March.
    • His brother-in-law wanted his wife to marry his friend
    • The wife’s brother told the applicant’s brother he would kill him

14. The Department communicated with the applicant’s wife by sending correspondence to her address, which was the same address where her parents reside.

15. At the Tribunal hearing, the applicant advised the Tribunal that he finished [Subject], becoming [an Occupation 1] in 2004 and he later worked as an [Occupation 2] in Islamabad, before coming to Australia.  He came to Australia in 2009. He met his wife in Chakwal as she came from Chakwal. In 2011 he went to Pakistan for a month and while there he married. Present at the wedding was his brother-in-law ie his sister’s husband.

16. The applicant has 1 son. His wife and son are now in Pakistan. He wants to return to Pakistan as soon as the problem he and his family are facing is over. His wife returned to Pakistan, in 2018, with their son. She returned because her family wanted her to come back. The applicant is facing problems from his brother in law only. His wife’s family, other than her brother, do not have any objection to their marriage. His wife is now living in Karachi with her sister.

17. The applicant said that he lived in Chakwal when he was in Pakistan and also in Islamabad which is 100 kilometres from Chakwal.  He married in 2011. His wife is originally from Chakwal and she moved to Karachi when he was in Australia. He went to Pakistan for 1 month and while he was there, they married in Karachi.  Present at the wedding was his sister’s husband. After the marriage, a secret marriage, his wife returned to her family.  When asked for a copy of the religious marriage certificate, the applicant said that he could not get it.

18. His brother-in-law objects to his marriage but no one else does. His wife’s father does not have influence in the family. In 2018, his wife was in contact with her mother and sister, for the first time after leaving Pakistan, and her mother and sister told her to return and she will be able to convince her brother to put aside his objections to the marriage. He is still objecting to their marriage. He still does not want the applicant to be married to his wife as he wants her to marry his friend. Her brother is pushing his wife to get divorced.  Her brother beat her once when she was in Pakistan. He has not beaten her since her return, but he is still pushing her.

19. The only reason the applicant is not in Pakistan is because of this brother-in-law. Asked if he has complained to the police, he said he lodged a report when his brother-in-law and his friends attacked him in Chakwal. He and his wife never lived together in Pakistan. Asked where a copy of the police report was, he said that he dropped it off to the Department after his interview, but it is missing. He then produced a photocopy of a document written in a foreign language. He said it was a police report. He was advised that if he wished to submit any documents to the Tribunal these must be translated. He said he would get it translated and submit it to the Tribunal.

20. The applicant said that the police said they will look into the matter of the attack on him on 28 March, but they did not do so. He went to the hospital and was treated in casualty but he was not admitted. He does not have any report of the hospital visit. He returned to Australia on 23 April and nothing further happened to him except he received threatening phone calls. Police did not do anything, as he went to police asking about the proceedings. He was still receiving phone calls from unknown persons, threatening him to divorce his sister.

21. He cannot move anywhere else in Pakistan. The problem is his brother-in-law is attached to MQM – London. He is not a member, just an associate. They are interested in harming him because of his brother-in-law. In the culture the family has a lot to do with the female’s marriage. It was put the MQM-London is not in government and there is no information this party has a presence whereby it seeks to harm people that its associates have family problems. He said when you are attached to a political party they support you, they back you up with their influence and man power. The people who beat him up were not from Chakwal. His brother-in-law is trying to say that the applicant has kidnapped his wife and forced her into marriage.

22. Asked what would stop him moving to Islamabad he said if they can find him in Chakwal they can find him in Islamabad. Put that there is no evidence his brother-in-law has any involvement with MQM. He confirmed he does not have a position, he is only associated with them.

23. I discussed with the applicant the lack of independent evidence that MQM pursued individuals on behalf of their associates for private purposes. I put that no information was located about [Mr A] [wife’s brother] or his association with the MQM or any other party. The applicant stated that he resides in Karachi and according to country information, MQM members are subject to an ongoing violence in some parts of Karachi. I also discussed the lack of information to suggest the MQM has adequate resources and influence to look for someone in Pakistan. As reported by country information the party is unable to protect even its own members therefore, I find it difficult to believe the party would have any influence to look for an applicant everywhere in Pakistan.

24. The applicant claimed that nobody in his wife’s family knew she was travelling to Australia. The applicant told the Tribunal that his wife was living with her parents and only her brother did not know. Her sister and her mother were helping her. It was put it was implausible that she lived in the house with her mother and her brother and they did not know. The applicant explained that the brother was not there all the time. I put that her brother lived in the house with his mother and the visa applicant received correspondence a visa and a passport and it was implausible her family would not know. Asked how he met her he said at a wedding in Chakwal in 2004 and they corresponded and met 3 times. I asked the applicant how if she lived in a house with her mother and brother that nobody would know that she was leaving the house and travelling to Australia. The applicant did not respond.      

25. The applicant stated that he could not move to anywhere else in Pakistan only because his brother-in-law would find him because of his association with MQM. Put that it was implausible that he could be found in the whole of Pakistan with its 200 million population. The applicant said that the brother is very influential. It was put that there is no evidence MQM London seeks to harm residents for no reason rather they seek to get into power. He said nobody wants to be associated with them publicly as they are the violent wing of the organization. Asked if he and his wife were Muhajirs, the applicant said that they were not.

26. I put to the applicant that he was able to reside anywhere in Pakistan. He disagreed stating that he could be found in Chakwal and his brother-in-law would find him anywhere. The Pakistani police would not protect him, they do not have enough manpower.  I drew his attention to the DFAT 2019 report on Pakistan and I indicated that it did not support his claims that the MQM would harm him.  

27. I put to the applicant DFAT information that large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. The applicant responded that if the brother can find him in Chakwal he can find him anywhere. I put to the applicant that the brother knew where he lived. I asked why he married if the couple went back to their families. He said to bring her to Australia, as his wife. She got her passport with his name on it in 2012. She was living at home, was rejected for the visa once and then she made another application. He did not see his wife during the trip in 2014 but his brother-in-law found out he was in Pakistan. It was put that the Department wrote in its decision that no information was found about the brother-in-law and his association with MQM or other party. He said that it was not unusual as people associated with these groups do not want to be known.

28. Prior to the 2^nd Tribunal hearing, the applicant provided photocopy of a Police Certificate in Urdu and a translation.

29. An unsigned letter was also sent to the Tribunal, purporting to be from the 2^nd named applicant, typed and written in English. It stated as follows:

    I married [the applicant] [in] November 2011. We had a secret relationship before our marriage. We got married, without the knowledge of our families. As my family never liked [the applicant], particularly my brother [Mr A]. He wanted me to marry one of his friends against my will. We kept it a secret until 2014. As the pressure from my family was increasing, we decided to apply for a spouse visa. My family found out about our marriage in 2014 when they found my marriage certificate. I was beaten by the family for marrying. [The applicant] was in Pakistan at that time, and when my brother found about our marriage, he went after [the applicant]. I found out later that he along with his friends had beaten [the applicant]. My brother wanted me to get a divorce from [the applicant], but I refused. For that, I had faced very harsh consequences from my family. During this period [the applicant] re-applied for my visa, which we were granted in November 2014. I didn't tell anybody about it in my family, except my sister. I went to my sister's house for a few days and left Pakistan from there, without the knowledge of my brother.

    While I was in Australia, I was in contact with my sister and tried to get approval from my family. But all went in vain. In 2016, our son was born. When my mother found about my son, she contacted me, and we started to re-establish our relation. My brother never talked to me in that whole period, as he has always thought that I have brought disgrace to my family.

    In 2018, I felt that we have made some progress. My mother and sister convinced me that if I come back to Pakistan, my brother will forgive us. After discussing it with [the applicant], I decided to go back.
    After arriving, I was received by my sister. A few days later, my brother came to meet me. He wanted me to get a divorce from [the applicant]. He hasn't forgiven [the applicant], and still wants to punish him. I am living with my sister to this date. I still fear for my husband's life. If he returns to Pakistan, he will be in immense danger.  I want him to stay in Australia, so he can be safe and alive.    

30. At 2^nd Tribunal hearing I noted that the applicant had provided a translation of the photocopy document he showed the Tribunal at the first hearing. I put to the applicant that the report stated that it was required to show an “Applicant's signature or thumbprint” and there was no thumbprint.  The applicant responded that they did not take his thumbprint.

31. I discussed with the applicant DFAT advice that stated that document fraud is endemic in Pakistan and there are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. He stated that he is not aware of that. He got the report from the police station.

32. I advised the applicant that he had told the Tribunal that only his brother-in-law had attended the religious ceremony but the independent evidence indicates that at a nikah the bride and groom must both have two witnesses present to ensure that the marriage is consensual. The applicant responded that his brother was present as was his sisters brother’s uncle. But there was nobody there from wife’s side as it was a secret marriage.

33. I informed the applicant that I would put to him information, pursuant to s.424AA of the Act.   I advised the applicant that I proposed to put information to him that would, subject to anything else he might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing. I advised the applicant if I relied on the information, I may find that it undermined his credibility and lead me to conclude that his claims were not genuine. If this was the case, I would have no other option but to find that he did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

34. I put to the applicant that he had stated to the Tribunal that his wife’s family were not aware of their marriage until 2014 but he had advised the Department at an interview that on several occasions from 2009 onwards his parents tried to persuade his wife’s parents to give their permission and his parents also involved community leaders to persuade her parents but they have always refused. I explained that this information was inconsistent. He responded at first they tried to get his wife’s parents to agree to the marriage but afterwards they married in secret.

1. I put that he told the Tribunal that his wife had left Pakistan from her home where she lived with her parents, but his wife has now stated that she left her family and went to stay with her sister before leaving Pakistan. I put that this information was inconsistent. He said he does not recall saying that, he said he was speaking generally from where her parents live.

2. I put that at Department interview, he said that his wife’s parents found out about their marriage in January 2014 when they saw her passport and her visa papers. They beat her when they saw the papers. I put that his wife has now stated that her family found out about the marriage when they found her marriage certificate. I put that this was inconsistent.  He said all the documents were together.

3. I put that he told the Tribunal that his wife left Pakistan without her family knowing she was going to Australia. He told the Department at interview that in March 2014 he travelled to Pakistan to apply for his wife's visa and to convince her family to allow her to travel to Australia, he called and spoke to her family who agreed to meet with him and subsequently he and his brother met with her brother because her father was not at home [in] March. I put that this was inconsistent. The applicant responded that the incident occurred [in] March when his wife’s brother beat him.

   REASONS AND FINDINGS

4. On the basis of their Pakistani passports, I accept that the applicant is a national of Pakistan and not a national or citizen of any other country. I accept that the applicant does not have a right to enter and reside in any country other than Pakistan. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

5. In considering the applicants claim I have considered country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 1 September 2017 (DFAT Report).

6. I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

7. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

8. The applicant has provided a marriage registration certificate issued by the government of Sindh Pakistan. I accept that the applicant married his wife in 2011 when he returned to Pakistan from Australia for 4 weeks. The applicant claimed to the Department that the couple secretly married through a Muslim religious marriage and registered their marriage with civil authorities. The applicant has only presented his Marriage Registration Certificate. The applicant claims that this marriage occurred in secret and his wife’s family were not aware of the marriage and the couple did not live together after their marriage. The applicant confirmed to the Tribunal that his sister’s husband had been the witness.

9. Marriages in Pakistan generally follow Islamic marital jurisprudence.  Culturally, marriages are not only seen as a union between a husband and a wife, but also an alliance between their respective families. The Muslim Family Laws Ordinance 1961[1] introduced reforms regarding registration of marriages and in default of such registration penalties of fine and imprisonment have been prescribed. Muslim marriages are legal and valid if they are performed according to the requisites of Islam.

   [1]

10. Nikah[2] is the actual wedding ceremony, usually officiated by a Muslim cleric, an imam.  The imam will ask for two witnesses from the bride’s side who will then accompany the Imam to the women’s side or just ask the witnesses to get the signed permission of the wedding registration documents. Once the witnesses return, the imam conducts the nikah by giving a short sermon (khutbah) and then asking the bride’s father (the wali or guardian) if he gives permission for his daughter to be married. The imam then turns to the groom and asks him if he will fulfil his rights and obligations and to pay the mahar. Mahar is loosely related to a gift, tax or dowry. 

    [2]

11. Nikah[3] is performed by a religious scholar- Imam, Mufti, Sheikh or Mullah, who in Pakistan is licensed by the government to perform the Nikah. The bride and groom must both have two witnesses present to ensure that the marriage is consensual.

    [3]

12. A Nadra Marriage Certificate[4] is the official document to show the marriage of two persons. The applicants can get two types of the marriage certificate, which are available in Pakistan. The applicants can get the manual marriage certificate, Nikah Nama in Urdu and the fully computerized Nadra marriage certificate. The married people can get the manual nikah nama from the same nikah khawan, who performs the nikah rituals religiously with the official stamp and signature of the registered nikah khawan. To obtain a Nadra marriage certificate, a nikah nama must be produced.

    [4]

13. I do not accept the applicant is a witness of truth for the following reasons:

14. Firstly, the applicant claimed to the Department and Tribunal at the 1^st hearing, that only his brother-in-law, his sister’s husband had attended the religious ceremony as a witness. When put to the applicant that the independent evidence indicates that at a nikah the bride and groom must both have two witnesses present to ensure that the marriage is consensual, the applicant responded that his brother-in-law was present and his brother-in-law’s uncle was also present on his side. There was nobody there from his wife’ side as it was a secret marriage.

15. I have considered whether having a secret marriage in Pakistan would dispense with the need for the bride to have two witnesses. I have found no independent evidence to suggest that during secret marriages the witness requirements of one of the parties to the marriage are able to be dispensed with and a marriage certificate, as provided by the applicant to the Tribunal, would issue. I am of the view that were it the situation there would be some reports indicating this. I prefer to rely on the independent evidence, cited above, that indicates that the bride and groom are both required to have 2 witnesses each in order to ensure that the marriage is consensual. I am satisfied the wife had witnesses on her side when she married and they did not marry in secret.

16. Secondly, I put to the applicant  pursuant to s.424AA of the Act, he had stated to the Tribunal at hearing 1 that his wife’s family were not aware of their marriage until 2014 but he had advised the Department at an interview that on several occasions from 2009 onwards his parents tried to persuade his wife’s parents to give their permission and his parents also involved community leaders to persuade her parents but they always refused. I put that this information was inconsistent. He responded at first they tried to get his wife’s parents to agree to the marriage but afterwards they got married in secret. I do not accept his explanation the couple were married in secret because the independent evidence, cited above, indicates that applicant and his wife are unable to marry without the presence of witnesses on the female side. I am satisfied that the parent of the 2^nd named applicant were aware of their daughter’s marriage in 2011. 

17. Thirdly, I put that to the applicant, pursuant to s.424AA, that he told the Tribunal that his wife had left Pakistan from her home where she lived with her parents but his wife has now stated that she left her family and went to stay with her sister before leaving Pakistan. The applicant said that he does not recall that, he said that as he was speaking generally from where her parents live. I reject his explanation he was speaking generally. At the first Tribunal hearing I discussed my concerns with the applicant about this claim and I expressed my view that it was implausible that the occupants of the home would not be aware his wife was leaving to go to the airport. The applicant at no time during that discussion suggested that his wife went to stay with his sister before departure to Australia and he maintained continuously that his wife departed to the airport from the house she lived in with her mother and brother. I am of the view that the explanation of applicant’s wife going to stay at her sister’s home, prior to her departure to Australia, is a late invention made to enhance his claims to the visa sought.  

18. Fourthly, I put to the applicant, pursuant to s.424AA, that he told the Tribunal that his wife left Pakistan without her family knowing she was going to Australia. He told the Department at interview that in March 2014 he travelled to Pakistan to apply for his wife's visa and to convince her family to allow her to travel to Australia, he called and spoke to her family who agreed to meet with him and subsequently he and his brother met with her brother because her father was not at home on 28 March. When explained this information was inconsistent, he responded that the incident when he was beaten occurred on 28 March. The applicant has not satisfactorily explained the inconsistency.

19. Fifthly, I put to the applicant, pursuant to s.424AA, that at Department interview he said that his wife’s parents found out about their marriage in January 2014 when they saw her passport and her visa papers. I put that his wife has stated that her family found out about her marriage when they found her marriage certificate. The applicant responded that they found the papers all together. I reject his explanation. I am of the view it is a late invention made to overcome the inconsistency of the applicant’s evidence.

20. In light of the inconsistencies and my finding that the applicant’s wife had witnesses at her wedding, I am satisfied the applicant is not a witness of truth.  I am satisfied that the applicant and his wife were not married in secret and the 2^nd named applicant’s family were aware of the marriage. I am satisfied the 2^nd named applicant’s parents and family have not accused the applicant of kidnapping the 2^nd named applicant and forcing her into marriage.

21. I have considered the situation if the applicant’s brother-in-law sought to harm him. I note that the applicant has no medical report to support his claim that he was injured.

22. The applicant advised the Tribunal that he had provided a police certificate to the Department. No certificate was in the Department file. At the 2^nd Tribunal hearing he provided a photocopy of a document and a translation.

23. I have considered the First Information Report police report provided. DFAT report advises that document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as National Database and Registration Authority ('NADRA'). It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.  More broadly, DFAT understands that fraudulent school records, birth certificates, death certificates, medical records, bank records and other documents are common. People have also been known to pay news organisations to publish false stories in newspapers.

24. I put to the applicant that the FIR report stated “Applicant's signature or thumbprint” was to be provided and there was no thumbprint.  The applicant responded that they did not take his thumbprint. I discussed with the applicant DFAT advice that stated that document fraud is endemic in Pakistan, he stated that he is not aware of that. He maintained he obtained the FIR from the police station.

25. In light of the inconsistency regarding the thumb print and the prevalence of document fraud in Pakistan, I place no weight on this report as evidence of the applicant being harmed by his brother-in-law.

26. The applicant claimed to the Tribunal that his brother harmed him and will continue to harm him anywhere in Pakistan, if he were to return, because he disapproved of his marriage. He would be able to be found because his wife’s brother is a supporter of MQM – London and they would find him anywhere.

27. According to DFAT, Muttahida Qaumi Movement (MQM), is a Karachi-based secular political party, and has dominated politics in Karachi for three decades because of its support in the densely populated working class neighbourhoods of Urdu-speaking Muhajirs, descendants of Muslims who migrated from India when Pakistan was created in 1947.  Neither the applicant nor his wife are Muhajirs. The MQM advocates the rights of 'Mohajirs'. As well as Karachi, the MQM has power bases in Hyderabad and Nawabshah districts of Sindh province.

28. According to Global Security[5] the military’s crackdown in Karachi started late in 2013, when the murder rate soared and mutilated bodies were dumped in alleyways daily. The city had suffered a major breakdown in law and order until Pakistan’s paramilitary force called the Rangers who started an operation in September 2013 to clear it out. The force had by the end of 2015 carried out 7,000 operations, leading to a 70 percent reduction in target killings, an 85 percent reduction in extortions, and a 90 percent reduction in kidnappings for ransom.

    Crime and safety in Karachi are major concerns. Criminal gangs, often with political party affiliations, operate with impunity in most parts of the city, and some areas are effectively cut off from the police. Despite a large-scale security operation carried out by the Pakistani Rangers and the Sindh Police, the violent crime rate remains high.

    Karachi has been wracked by political violence. Since the summer of 2009, there have been thousands of targeted killings in Karachi as a result of ethno-political rivalries. Political violence in Karachi between 1986 and 1996 claimed at least 10,000 lives.

    Karachi is the largest city, main seaport and the main financial center of Pakistan, as well as the capital of the province of Sindh. Karachi produces more than 50 percent of Pakistan’s revenue. The city has an estimated population of 13 to 15 million, while the total metropolitan area has a population of over 20 million. Karachi is the most populous city in the country, one of the world’s largest cities in terms of population and also the 10th largest urban agglomeration in the world. The city has been hijacked by ethnic death squads and sectarian death squads.

    Much of the violence stems from a series of running clashes between rival gangs of the long-dominant political power in the city and a group of relatively new arrivals challenging their dominance. For years power in Karachi has been held by Mohajirs, the Urdu-speaking descendants of the immigrants who came from India at the time of partition in 1947. The ethnic group has wielded political power in the city through its party, the Mohajir Quami Movement, or MQM. But analysts say the city has undergone a sharp demographic shift as ethnic Pashtuns, many of them displaced from fighting in Pakistan’s northwest tribal areas, have migrated to the city.

    Violence remained a major public health problem in Karachi, affecting predominantly wage earners. At least some of the violence is rooted within the political system. And a lot of it continues to be in the category of simple criminality, which gets an ethnic patina on it. Bouts of sectarian-based violence between Shia and Sunni Muslim groups have also been reported.

    Incidents of terrorism and politically-motivated violence in Karachi, the remainder of Sindh province, and Balochistan province occur with regular frequency. A variety of groups, ranging from extremist religious elements to criminal gangs associated with local political organizations, orchestrate bombings, assassinations, and other acts of violence in Karachi with grim regularity, to include attacks on police and security forces. Over 142 police and Rangers were killed in Karachi in 2014.

    In 2015 there has been a dramatic turnaround in targeted killing cases in Karachi since the authorities launched an operation against criminals, the government claimed on 31 July 2015, noting that the homicide rate was down by almost half.

    The Kidnapping for ransom is almost eliminated and killings in Karachi was down to two murders per day, on an average. Almost all major terrorist groups were confronted and 300 hard core terrorist ring leaders were neutralized in a period of just one year. Kidnappings for ransom had been a routine in the interior of the Province and Karachi city previously was witnessing around 7 to 8 killings/murders per day. Robberies continue unabated in the metropolis while the authorities claim the law and order situation has improved. Citizens of the metropolis now expect to be deprived of their valuables at any hour of the day. Cases where citizens have been looted by armed gunmen when returning home from weddings were common. Many areas in Karachi can be considered unsafe due to high crime, lack of police control, and the presence of extremist elements.

    [5]

29. DFAT assesses that MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT further assesses that MQM members who are associated with (or perceived to be associated with) political violence or criminal activities face a moderate risk of violence from security forces. 

30. I have found no independent evidence to suggest that MQM members, known also as MQM-London as distinct from MQM-Pakistan, harm or are perceived to harm persons without a political profile, for personal reasons because one of their supporters disapproves of a marriage.  I am of the view that were it the situation it would be known to independent sources, who report on MQM activities. No information was located to suggest the MQM has adequate resources and influence to search for someone in Pakistan, in the manner described by the applicant. As reported by the country information cited above, the party MQM is unable to protect even its own members therefore, I find it difficult to believe the party would have any influence to look for the applicant everywhere in Pakistan, as claimed by the applicant. I am therefore not satisfied the MQM – London is interest in the applicant and seeks to harm him or that they seek to harm him because his brother-in-law is their associate and disapproves of his sister’s marriage.

31. Therefore, as the applicant is not a witness of truth and as the applicant married his wife with approval of her family, I am satisfied the couple lived together after they were married albeit a short time when the applicant was in Pakistan, his wife was not afraid that her father would kill her as she married without his approval and it follows that I do not accept that her family have in the past or presently seek to force her to divorce the applicant. I also find that the applicant’s wife’s parents did not harm her nor did they accuse the applicant of kidnapping their daughter or of not marrying their daughter. I also find that the wife’s brother does not seek to harm the applicant, he did not disapprove of his sister’s marriage, he did not tell the applicant’s brother he would kill the applicant and he did not try to harm the applicant with friends. I also find that the applicant’s brother-in-law is not an MQM-London supporter/associate and I also find the brother-in-law did not attempt to harm the applicant on 28 March 2014.  I am of the view that the applicant has created his claims in order to obtain the visa sought.

1. I am satisfied the applicant was not harmed in Pakistan and came to Australia as the holder of a student visa.

2. I am required to consider if the applicant, in the forseeable future, would suffer significant harm or serious harm for a Convention related reason, if he were to return to Pakistan.

3. I accept that according to DFAT [2019] Pakistan was elected to the UN Human Rights Council in October 2017 for a three-year term (2018 to 2020). It has ratified most major international human rights instruments. However, the full implementation of many of these instruments lags. 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. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

4. Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi'a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). The government's ability to maintain law and order against politically motivated violence is limited. Demonstrations often occur after Friday prayers and can be the target of terrorist attacks. In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July). Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations

5. The applicant is neither a political leader nor political worker nor a member of a religious minority.

6. I note that at the time that the applicant lived in Pakistan and when he returned to visit, Karachi was an dangerous city for crime. An article in Gulf News[6] dated 24 April 2019 reports that Karachi dropped  from 6th place to 70th in World Crime Index after efforts by security forces, police officials, Sindh Rangers (part of the Pakistan Rangers who are a paramilitary law enforcement organisation) and intelligence agencies in helping to decrease crime.   

   [6]

7. I have considered the applicant's claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding the security situation in Pakistan, I find that the applicant does not have a real chance that, if returned to Pakistan, he would suffer persecution for a Convention related reason. I find that the applicant does not have a well-founded fear of persecution for these reasons.

8. I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).

9. I accept that the applicant fears many things are happening in Pakistan, there are bomb blasts, kidnappings and he is scared about his child if something were to happen.

10. As the applicant did not suffer any harm when he resided in Pakistan or when he returned there for visits, and the applicant does not have a profile of a political leader, political worker or a member of a religious minority, I am not satisfied that 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 the applicant will suffer significant harm.

11. I do not accept on the evidence before me, therefore, that 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    Conclusion

12. 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 s.36(2)(a).

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. 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

15. The Tribunal affirms the decision not to grant the applicants protection visas.

    Lilly Mojsin
    Member

    
    

    ANNEXURE A

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

    Refugee criterion

17. 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).

18. 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.

19. 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.

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

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

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

    Complementary protection criterion

27. 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’).

28. ‘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.

29. 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

30. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    Member of the same family unit

31. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.