1701775 (Refugee)

[2017] AATA 1669

1701775 (Refugee) [2017] AATA 1669 (4 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701775

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Alison Murphy

DATE:4 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 September 2017 at 12:01pm

CATCHWORDS

Refugee – Protection visa – Federal Court remittal - Pakistan – Political – Family members belong to MQM – Ethnicity – Mohajir - Extorted by Taliban – Pressured by cleric - Send family members for Taliban training – Abducted by Taliban – Credibility – Changing evidence

LEGISLATION

Migration Act 1958 – ss.5(1), 36(2)(a), (aa), (b), or (c), 36(2B)(c), 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
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

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

2. The applicant is a [age] male from Karachi in Sindh province, Pakistan.  He arrived in Australia [in] October 2011 as the holder of a [temporary] visa valid until [date] March 2013.  He departed Australia [in] January 2013, returning [in] February 2013.  He lodged an application for a protection visa [in] March 2013, seeking to invoke Australia's protection obligations so that he does not have to return to Pakistan.

3. The delegate refused to grant the visa [in] March 2014, not being satisfied that the applicant was a person to whom Australia owed protection. The applicant sought a review of the delegate’s decision from the former Refugee Review Tribunal which affirmed the delegate’s decision on 9 April 2015. The applicant sought further review of the Tribunal’s decision and [in] January 2017 the Full Federal Court remitted the matter by consent back to the Tribunal for reconsideration.  A note to the court’s order dated [in] January 2017 indicates the Minister conceded that the Tribunal erred in failing to ask itself whether the serious harm it accepted the applicant would suffer if he did not make extortion payments would be for one of the characteristics mentioned in Article 1A of the Refugees Convention.

4. The applicant appeared before the Tribunal on 10 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

11. The Tribunal observes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

12. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes 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 United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.  Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status.

13. On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).

14. At hearing the Tribunal raised with the applicant the issue of his credibility, noting it was concerned about the plausibility of his claims as well as inconsistencies in his evidence.  In view of the Tribunal’s concerns, the Tribunal has formed the view that certain aspects of the applicant’s evidence should not be accepted.  The Tribunal’s particular findings are set out below.

    Country of nationality

15. It is not in dispute that the applicant is a Pakistani national who travelled to Australia on an apparently genuine Pakistani passport, a copy of which is contained on the departmental file.  The Tribunal finds the applicant is a national of Pakistan and has assessed his claims against that country.

    The applicant’s background

16. The applicant states he was born in Hyderabad, Pakistan but that his family moved to Karachi in Pakistan’s Sindh province shortly after he was born. His parents are now deceased and he has [number] siblings.  Earlier in these proceedings the applicant stated that at the time he left Pakistan [number] of his siblings were unmarried and lived with him in [Suburb 1], Karachi.  At the Tribunal hearing on 10 July 2017 the applicant told the Tribunal that his [family members] had since married and his [other family members] also lived separately and he was no longer financially responsible for his siblings. He married in 2006 and has [children] who live with his wife and her parents in [another suburb], about one and a half hours from his home in [Suburb 1].

17. After finishing school, the applicant undertook a [tertiary course] and some [other] courses in Karachi, working as a [occupation] from 1992 – 1995 and as a [occupation] from 1999 - 2000.  The applicant states that in 1997 he set up a business called [Business 1] which he ran until he departed Pakistan in 2011 and which at the time he lodged his visa application was operated by staff.  From 2003 – 2010 he also worked at [Company 1] and from 2004 – 2011 he also worked at [Company 2] as a [occupation] for banks.  At hearing he told the Tribunal he was able to do all of these things concurrently because he only needed to go into [Company 1] 2 or 3 times a week, he worked full time at [Company 2] during the day finishing at 5pm and then worked at his own business at night, seven days a week, assisted by his [family members].

18. He stated his business was run from rented premises and conducted door to door providing [certain] services, with customers also visiting the shop.  He said the business’s equipment comprised [items].  His [family members] worked there at one time but when he came to Australia in 2011 the business was being operated by employees and he stopped operating the business in about February 2013. 

19. The Tribunal accepts each of the above matters to be true.

20. At hearing the applicant told the Tribunal that his business [Business 1] stopped operating in about February 2013 about the time he returned to Australia from Pakistan because it was taken over by the people extorting him for money and he didn’t know whether or not it continued to operate.  The Tribunal accepts the applicant is no longer operating that business, however for the reasons set out in detail below it does not accept this is because the business was taken over by the persons he claims were extorting him for money.

    The applicant’s claims for protection

21. The applicant claims to have been extorted by the Taliban and/or other militant extremist groups in Pakistan since 2003. He claims that as a result of the war in Iraq, the Taliban escaped from Iraq to Afghanistan and gained a lot of support in Pakistan particularly in the madrassas. He claims a local [cleric] named [Mr A] who led [number] mosques including the [name] mosque wanted the applicant to send his [family members] to join a madrassa so that they could be recruited to fight for the Taliban and that when he refused, the [cleric] demanded that he give money to the Taliban instead.

22. In his protection visa application, the applicant states he was abducted by the Taliban, Al Quaeda and local militants three times and forced to pay the amounts demanded of him.  He states when he refused he was assaulted and threatened with detention and hard labour in Afghanistan and the police officers assisted the Taliban to recruit men who refuse to listen to their orders.  He claims that police officers assist the Taliban to kill those who refuse to pay bribes to the Taliban and are given good money to protect Taliban militants.

23. The applicant claims that he first paid [Mr A] Rs.[amount] and [Mr A] would then send [number] men to his shop once or twice a month to collect Rs [amounts]. He claims that situation continued from 2003 to 2009. He claims he was first abducted by the persons extorting him in about September or October 2009, who told him they were working for the [cleric] and demanded Rs.[amount]. He claims to have been abducted for a second time in August 2010 when the demand was made for Rs.[amount], causing him to approach the police. He claims that the police took no action in about May 2011 he saw the same police officer in the company of the [cleric] and his men and that officer talking to the police station, beat him and accused him of drug dealing in his business. He claims the police officer took him to see the [cleric] at [mosque], who told him that he would send the applicant to Khyber Pakhtunkhwa to work for him, promising he wouldn’t so much money he would forget about his business. The applicant claims he assumed the [cleric] wanted him either to work as a drug dealer, a suicide bomber or in targeted killings.

24. He claims that after discussions with his wife he decided to go overseas, applying for a [temporary] visa to Australia in May or June 2011 and leaving Pakistan in October of that year. He claims that when he returned to Pakistan to visit his family in January 2013 he was again contacted by the police officer who told him the [cleric] had arranged a job for him in Abottabad to be taught the drug dealing business before being sent to Afghanistan.  He claims that he was permitted time to return to home and make arrangements for his departure and during this time he escaped from his guards and returned to Australia.

25. However for the following reasons the Tribunal does not accept the applicant’s claims to be credible.

    Claims of extortion between 2003 and 2009

26. As discussed with the applicant at hearing, the Tribunal is concerned about the credibility of the applicant’s claims to have been extorted between 2003 and 2009:

    ·The applicant claims that in 2003 the [cleric] [Mr A] demanded he send his [family members] to a madrassa where they brainwashed Muslim youths to fight jihad and when the applicant refused to do so, the [cleric] extorted him for money stating that if he wouldn’t send his [family members] to fight jihad he would have to support the school financially.  He claims that unknown men working for the [cleric] would arrive at his shop demanding he pay money or send his [family members] to their school.  In his written claims he states that as time passed these men were later found to have been working for the Tehrik-e-Taliban (TTP) and were involved in the abduction and murder of Muslim youths and men for ransom and many youths who disappeared were taken away by these militants;

    ·At the Tribunal hearing on 10 July 2017 the applicant told the Tribunal that he didn’t remember the names of the men who approached him in 2003 but that the [cleric] and his people started asking all unemployed persons and students to join the madrassa and his [family members] were targeted by the [cleric] because they were unemployed.  However this is inconsistent with his written claims in which he states he involved his [family members] in his business so they could learn skills and run the business for him when he was away and that by 2003 he was earning good money, his [family members] were of great assistance to him and he was able to progress the business with their help. At hearing the applicant confirmed his [family members] worked in his business;

    ·Further, as discussed with the applicant hearing, the Tribunal does not find his claims that the Taliban were attempting to forcibly recruit his [family members] to fight jihad to be credible. While Karachi is reported to be an important recruiting ground and source of finance for the TTP, such recruitment is reported to be voluntary or driven by economic desperation and it is reported the TTP have enough willing recruits as to make forced recruitment of the kind described by the applicant unnecessary. While the TTP are reported to have undertaken forced recruitment in the Federally Administered Tribal Areas of Pakistan, other sources suggest even these reports are merely propaganda and that any attempts to forcibly recruit would only harm the reputation of such groups and would be pointless because militant groups are able to recruit enough voluntary members.[1]  The applicant responded to this information by saying that he personally knew many boys from his locality who were taken for these reasons and that a few went willingly and a few were taken by force.  However the fact that the applicant’s claims are inconsistent with independent sources about the Taliban’s recruitment methods in Karachi, taken together with the Tribunal’s other concerns about the applicant’s credibility set out below, causes the Tribunal not to accept the applicant’s evidence in this regard.

    [1] Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organisation and the reasons for its growth in Pakistan's north-west, Qandeel Siddique, Danish Institute for International Studies, 30 November 2010, CIS19710, p. 52; Pakistan: Stoking the Fire in Karachi, International Crisis Group, 15 February 2017, CISEDB50AD293, p. 23; Fact finding mission report: Pakistan, Federal Ministry of the Interior, Federal Republic of Austria, September 2015 (revised edition), CISEC96CF15310, p. 39.; Karachi becoming a Taliban safe haven?, Imtiaz Ali, Combatting Terrorism Center at West Point, United States Military Academy, January 2010, CXC9040669832

27. For the above reasons, the Tribunal does not accept the applicant’s claims that he was extorted by the Taliban or other militant extremists between 2003 and 2009 in an attempt to force him to send his [family members] to a madrassa where they would be recruited to fight for the Taliban.

    Claims of harm suffered between 2009 - 2011

28. The Tribunal also has significant concerns about the credibility of the applicant’s evidence about his interactions with the TTP between 2009 and his first departure from Pakistan in October 2011. The applicant has described his interactions with the [cleric] [Mr A] and his men between 2009 and 2013 in a written statement dated [in] April 2013, at a departmental interview conducted [in] January 2014 and at the Tribunal hearings on 19 March 2015 and 10 July 2017.  The applicant has also provided the department and Tribunal with news articles and references relating to the situation in Karachi and Pakistan which the Tribunal has considered carefully when assessing the applicant’s claims. 

1. As discussed with the applicant at hearing, the Tribunal is concerned about significant changes to his evidence over time as well as the overall credibility of his claims:

   ·The applicant claims that in August 2010, he was abducted from the street by the [cleric]’s men who took him to a private house and demanded he pay them [amount].  He claims he was released after being given time to pay.  At the Tribunal hearing on 19 March 2015 he said he was given 30 days to produce the money.  At the Tribunal hearing on 10 July 2017 he said he was given 15 days to produce the money.  When the apparent inconsistency was raised with him at hearing, he stated it was probably 30 days;

   ·The applicant claims after the August 2010 abduction he was advised by neighbouring shop owners to report the abductions to the police and so he attended the police station the week later and requested a senior police office file an FIR report against the [cleric] and his men.  He claims the officer told him they would first undertake an investigation and then lodge the FIR, but he never heard back from the police officer.  At the hearing on 10 July 2017 the applicant told the Tribunal he didn’t follow up his complaint with the police officer, despite not hearing anything from him before the next incident occurred ten months later in May 2011. The Tribunal considers it surprising that the applicant would not follow up his complaint given his claimed fears for his safety;

   ·The applicant claims that the next abduction occurred some time later, but has given inconsistent evidence about when.  In his written claims dated [in] April 2013 he states it was a few months after he attended the police station in August 2010, but at the Tribunal hearing on 10 July 2017 he stated it was in May 2011, some ten months after he attended the police station;

   ·The applicant’s evidence about the events that occurred during his abduction in May 2011 is also inconsistent.  He has consistently stated that some people outside the mosque said to him that he had complained about the [cleric], but he should have spoken to the [cleric] first. He denied making the complaint and went inside the mosque and offered his prayers. However his account of what happened next has varied considerably over the course of these proceedings;

   ·At the Tribunal hearing on 10 July 2017 he said as he was leaving the mosque he saw the police officer who called out to him, before taking him to a small ‘sub’ police station where he was threatened and beaten for two and a half hours before being taken on the same day to [name] mosque where he met the [cleric] who said he didn’t have to pay the money if he stopped complaining to the police and agreed to work for them in Abbottabad in the drug trade. However in his detailed written claims dated [in] April 2013 the applicant stated that after finishing his prayers he tried to leave but was asked by the [cleric]’s men and the police officer to stay back and speak to the [cleric] while he repeated his complaints to the police officers that he had been abducted twice in the past constantly had demands for money made upon him at his shop.  He states the [cleric] and the police officers laughed at him and humiliated him before suggesting he work for them in North West Frontier Province.  Notably he does not suggest that he was taken to a police station by the police officer and beaten or threatened, rather he states he returned home where his wife asked him to leave the country.  When the apparent inconsistency was raised with the applicant at hearing, the applicant stated he had mentioned it to the solicitor who had helped draft his statement and it should be in there;

   ·Further the applicant stated at the first Tribunal hearing on 16 January 2014 that while he was being detained and beaten at the police station, the police officer accused him of drug dealing, telling him he had a good income which must have come from somewhere else. However at the Tribunal hearing on 10 July 2017 the applicant did not suggest he was accused of drug dealing, rather he stated he was told if he did not give them the money demanded they would take his [family members] and put them in the madrassa and take the applicant to Abbottabad and force him to work for them there;

   ·In his written claims the applicant states that it was after this incident in May 2011 that he and his wife decided he must leave the country and he contacted a travel agent known to his [other family member] who promised to send him overseas as a student.  At hearing on 10 July 2017 he told the Tribunal that he applied for the [temporary] visa in May 2011, after the abduction that same month.  When asked why he didn’t apply for a [temporary] visa earlier given the claimed abductions in 2009 and 2010, he stated he was unable to find an agent before that.  However documents annexed to his [temporary] visa application file indicate that he sat for an IELTS test [in] December 2010 and he had already sat an earlier IETLS test [in] June 2010.  In his personal statement submitted with his [temporary] visa application he states that after graduating from Australia, he will be very proud to come back to his homeland and serve his nation.  In response to the Tribunal’s letter under s.424A dated 4 August 2017, the applicant stated his [temporary] visa application was made by his agent in Pakistan as the applicant was trying to flee Pakistan as he was in fear of being taken away by the [cleric] and police to work for the TTP and the personal statement was prepared and signed by the agent without the applicant’s knowledge.  However the applicant’s response only confirms he was making arrangements to leave Pakistan prior to the incident in May 2011 which he stated pre-empted his departure and that he had engaged the services of a migration agent almost a year before that, despite his evidence to the contrary at the Tribunal hearing.  For these reasons the Tribunal does not accept that the claimed abduction in May 2011 caused the applicant to apply for a [temporary] visa or that he was not able to apply earlier because he could not find an agent.

2. For all the above reasons, the Tribunal does not accept the applicant’s evidence about his interactions with the TTP between 2009 and his first departure from Pakistan in October 2011.

   The applicant’s return to Pakistan in January 2013

3. As discussed with the applicant at hearing, the Tribunal is concerned about the applicant’s voluntary return to Pakistan in January 2013 and significant inconsistencies in his evidence about events he says occurred during that trip:

   ·The applicant told the Tribunal he returned to Pakistan for a month in January/ February 2013 and stayed with his wife’s family.  He stated that the police had visited the applicant’s father’s house and enquired about him but his wife had told them he was not returning to Pakistan and then moved to the home of her own family.  He stated he thought he would be safe at the house of his wife’s family because nobody had looked for him there.  He stated that about 8-10 days after he arrived in Pakistan, he got a call from the police station near his wife’s house asking him to come in.  When he did he found [name], the same police officer who had beaten him at the police station in his old area of [Suburb 1].  That police officer told him to abandon his plans of going abroad and instead go abroad on a mission.  He gave evidence the police officer took him along to see the [cleric] who told him he would send him to Abbottabad, where he would receive training in the drug trade before being sent to Afghanistan.  He stated that he asked the [cleric] to give him two months to arrange things for his family and the [cleric] agreed, allowing him to return to his wife’s home with two bodyguards who were supposed to take him to Abbottabad.  He states those men lived in his wife’s house for the remainder of his trip while the applicant pretended to be looking for another property to move his wife and children into before travelling to Abbottabad to work for the [cleric].  He states he managed to escape in the middle of the night hidden in his [other family member]’s [food] delivery van before moving to Hyderabad with one of his relatives before returning to Karachi and catching his return flight back to Australia;

   ·However the Tribunal does not accept the applicant’s account to be credible.  The Tribunal notes that on the applicant’s evidence, the [cleric] and his people made no contact with the applicant or his family between the claimed abduction May 2011 and October 2011 when he departed Pakistan.  The applicant was then absent from Pakistan for sixteen months.  The Tribunal does not accept that in January 2013 the [cleric] would have the capacity or the inclination to locate the applicant in another part of Karachi within a few days of his return to Pakistan and immediately offer him training in the drug trade in Abbottabad before sending him to Afghanistan.  This is particularly the case given the applicant’s evidence he would not undertake that work willingly;

   ·Further the Tribunal notes the applicant made no mention in his detailed written statement that he the [cleric] had sent two bodyguards to live with him at his wife’s house for the remainder of his time in Pakistan.  The Tribunal considers that had this in fact occurred, he would have mentioned it in his detailed written statement.  Nor does the Tribunal accept as credible the applicant’s account of how he was able to escape from two bodyguards in his [other family member]’s [food] delivery van.  Further the Tribunal considers that if the applicant had escaped in the circumstances claimed, he would not have remained in Hyderabad and then returned to Karachi to catch his return flight, rather he would have left Pakistan earlier from Hyderabad;

   ·The applicant told the Tribunal at hearing on 10 July 2017 that the Taliban took over his [Business 1] about the time he returned to Australia in February 2013.  However his evidence as to how this took place was vague and lacking detail.  When asked how they took over the business he said he did not have much detail and all he knew is they took over the business and his employees left.  When the Tribunal indicated it was having difficulty understanding how this occurred, he said the people were very influential and it was easy for them.  When asked if they had come in and changed the locks, he stated they came to the premises and asked the employees to leave and not show up again. The lack of detail, taken together with the Tribunal’s other concerns about the applicant’s credibility, cause the Tribunal not to accept that the applicant’s business was taken over by the people who extorted him.  Rather the Tribunal considers that the applicant ceased to operate the business when he returned to Australia in February 2013;

   ·The applicant first arrived in Australia [in] October 2011, but did not lodge an application for protection until [date] March 2013, three days before his a [temporary] visa expired [in] March 2013. At hearing he stated he did not lodge a protection visa application because he wanted to complete his studies. In response to the Tribunal’s letter under s.424A dated 4 August 2017, the applicant stated that he relied on a travel agent to complete the necessary paperwork to obtain the [temporary] visa and was not aware what details that agent gave to obtain his visa and later discovered his agent had not mentioned his marital status on his visa application.  He stated he was determined to study until it was safe to return to Pakistan and then returned to Pakistan intending to lodge a fresh [temporary] visa application including his wife and children, but was advised by his agent that it would not be possible to do so causing him to decide he would live in Pakistan permanently with his family.  He states he returned to Pakistan hoping the [cleric], TTP and police officers would have forgotten about him but the [cleric] found out about his return and got the police to arrest him.  However the Tribunal does not accept this explanation, considering the applicant’s voluntary return to Pakistan indicates he had no subjective fear of harm in Pakistan at that time and this further detracts from the credibility of his claims.

4. For all the above reasons, the Tribunal does not accept the applicant’s claims to have suffered harm or otherwise come to the adverse attention of militant extremists or the Pakistani authorities when he returned to Pakistan in January 2013.

5. For all of the reasons set out above, the Tribunal does not accept the applicant to be a witness of truth.  The Tribunal does not accept that he was the victim of extortion attempts by the Taliban, Al Qaeda or other militant extremists in Karachi between 2003 and 2009, nor that he was the subject of abductions by any person between 2009 – 2011. The Tribunal does not accept that he or his [family members] were threatened by militant extremists at any time, nor that any person tried to compel the applicant to send his [family members] to a madrassa so that they could be trained for jihad. The Tribunal does not accept the applicant was detained, threatened, beaten or otherwise harmed by police officers at the behest of the [cleric] or any other extremist group or person, nor does the Tribunal accept that the applicant was pressured to work for extremists in the drug or any other trade in NWFP, Abbottabad or Afghanistan.  The Tribunal does not accept the applicant left Pakistan in 2011 as a result of any subjective fear of harm from the [cleric] or his associates, nor that he had any personal contact with militant extremists in Karachi. 

6. It follows the Tribunal does not accept there to be a real chance the applicant will suffer serious harm from the Taliban, Al Qaeda or other militant extremists in Karachi if he returns to Pakistan, now or in the reasonably foreseeable future.  The Tribunal has accepted the applicant no longer operates his business [Business 1] and the Tribunal finds there is no real chance he will be extorted as a business owner if he returns to Karachi in the future.  In making this assessment the Tribunal notes the applicant was employed full time at [Company 3] as a [occupation] for banks from  2004 – 2011 and part time at [Company 1] from 2003 – 2010 and considers he will be well placed to obtain similar employment if he returns to Karachi.  For these reasons the Tribunal does not accept the applicant has a well-founded fear of persecution from such people if he returns to Karachi, now or in the reasonably foreseeable future.

   Mohajir ethnicity and [family members’] membership of MQM

7. The Tribunal accepts the applicant is of Mohajir ethnicity, his family having emigrated from India to what is now Pakistan.  At the Tribunal hearings the applicant gave evidence that he faced many problems because of his Mohajir ethnicity, because the Pakistani government does not accept Mohajir people who are referred to as refugees, not Pakistanis.  When asked how this had impacted on him, the applicant stated they were not able to get jobs.  When it was pointed out that he himself had had a number of professional jobs in Pakistan, he stated his [relatives] had been rejected for many jobs.  The Tribunal discussed with the applicant that independent sources indicated that violence against Mohajirs in Karachi in the past had been due to those individual’s associations with the Muttahida Quami Movement (MQM), a Karachi-based secular political party which advocates for the rights of Mohajirs and whose members are reportedly subjected to ongoing violence in some parts of Karachi[2].  The applicant stated that Mohajirs who had not joined MQM were still recognisable by the faces and documents and were at risk whether or not they were members of MQM.  However in light of the independent sources indicating that violence against Mohajirs in Karachi has occurred in the context of MQM membership and the fact that the applicant has not identified any manner in which Mohajir ethnicity has caused him personally to be harmed or discriminated against, the Tribunal does not accept he faces a real chance of harm due to his Mohajir ethnicity.

   [2] DFAT 2016 Country Information Report: Pakistan at 3.34-3.38; Yusuf, H. 2012, Conflict Dynamics in Karachi, United States Institute of Peace, October, pp. 8, 19 < Vira, V. & Cordesman, A.H. 2011, Pakistan: Violence Vs. Stability, Centre for Strategic & International Studies, 5 May, pp. 116-17 <>

   At hearing the applicant gave evidence that his [family members] remained living in Karachi where they had joined MQM for their own protection to avoid recruitment from the Taliban.  He confirmed that he himself was not a member of MQM.  When asked when his [family members] had joined MQM, the applicant stated they had joined in 2013 after the applicant came to Australia.  He gave evidence that the fact his [family members] had joined MQM put him in danger because the people threatening him would understand his [family members] had joined MQM for protection.  He gave evidence that MQM clashes with other political parties and he may also become a victim of political violence.

8. In assessing this claim the Tribunal notes that while the applicant gave evidence his [family members] joined MQM as protection against being recruited to the Taliban, for the reasons set out in detail above the Tribunal has not accepted the Taliban were attempting to forcibly recruit his [family members].  In view of the Tribunal’s serious concerns about the credibility of the applicant, the Tribunal does not accept his [family members] joined MQM in 2013 as claimed.  Nor does the Tribunal accept there to be a real chance the applicant would be perceived as a member of MQM merely because of his Mohajir ethnicity. It follows that the Tribunal does not accept there to be a real chance the applicant would face harm from the Taliban or any other person or group because his [family members] have joined the MQM or because he himself would be perceived as an MQM member.  

9. 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).

   Complementary Protection

10. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for the purposes of s.5(1).

11. For the reasons set out above, the Tribunal has not accepted that the applicant has in the past been threatened, extorted, assaulted abducted by the [cleric] or his associates or members of the Taliban, Al Qaeda or other militant extremists in Karachi.  Nor has it accepted that members of the Taliban or any other militant group sought to recruit the applicant’s family members] to their organisation or to punish the applicant for his refusal to allow his [family members] to be recruited.  The Tribunal has not accepted there to be a real chance the applicant will be harmed by any person or group because of his Mohajir ethnicity or his [family member]’s membership of the MQM.  As a result the Tribunal has not accepted there to be a real chance that the applicant will be targeted for serious harm by the [cleric] or his associates, the Taliban, Al Qaeda or other militant extremists in Karachi or any other person or group if he returns to Pakistan, now or in the foreseeable future, for any reason. 

1. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from the [cleric] or his associates, the Taliban, Al Qaeda or other militant extremists in Karachi or any other person or group if he returns to Karachi, Pakistan as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan. 

   [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

2. At hearing the Tribunal discussed with the applicant information indicating the security situation in Karachi had improved in 2016 as a result of government security operations.  PIPs reports that government operations have been ‘largely successful’ in shattering existing organised militant networks in Karachi, although they now had to deal with transitional militant outfits and radicalised individuals.  Sectarian violence between Sunnis and Shias and criminal violence reportedly remain problems in Karachi, despite the improved security situation[4]. The applicant stated that the government security operations did not kill the main culprits and there were still targeted killings in the city.  While the Tribunal accepts Karachi continues to experience security issues, the Tribunal finds the risk the applicant could be harmed in such violence is one faced by the population generally and not by the applicant personally. Pursuant to s.36(2B)(c), such a risk is taken not to be a real risk that the applicant will suffer significant harm. 

   [4] PIPS Security Report 2016, Pak Institute of Peace Studies, January 2017, CISEDB50AD63, p. 112.

3. For these reasons, the Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   CONCLUSIONS

4. 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).

5. 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).

6. 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

7. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Alison Murphy
   Member