1710719 (Refugee)

[2021] AATA 3025

1710719 (Refugee) [2021] AATA 3025 (7 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1710719

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Gabrielle Cullen

DATE:7 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2021 at 1:31pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – particular social group – failed asylum seekers – selling Western style clothes to women – members of the family unit – children in institutional care – fear of arrest – Sharia Court trial – bribery for release – passport renewal – cruel or inhuman treatment – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2

CASES

Chen Shi Hai v MIMA (2000) 201 CLR 293

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 on 5 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of Pakistan, applied for the visas on 29 September 2016. They both were born in Australia to parents who are Pakistani citizens.  They are respectively [ages] years of age.

3. Their parents, [named], previously applied for protection visas [in] 2013. The Department refused to grant the applicants’ parents protection visas on 27 May 2014 and the Tribunal affirmed the Department’s decision on 21 April 2015[1]. As the applicants were born after the refusal of their parents’ protection visa applications by the Department, neither were included in that application.

   [1] The applicants submitted with their application their parents’ Refugee Review Tribunal decision, [number].

4. The applicants claim to fear return on the basis that their parents will be detained upon arrival to Pakistan as they are failed asylum seekers and as their mother sold western style clothes to Muslim women in Pakistan, she was arrested and the applicants’ father bribed to have her released. They claim that as a result they will become unaccompanied minors and will be placed in institutional care. The applicants claim that the quality of institutional care in Pakistan is inadequate and the second named applicant will be especially vulnerable as she is female.

5. On 2 May 2017 the applicants’ father was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

6. The delegate refused to grant the visas on 5 May 2017 on the basis that the claims that the applicants’ mother sold western clothing, was detained and a bribe was paid for her release is not credible. The delegate also referred to country information to find that the applicants’ parents would not be detained on return as failed asylum seekers and involuntary returnees. The delegate found that the applicants’ parents will not be arrested on return to Pakistan, the applicants’ therefore will not become unaccompanied minors and will not need to be placed in institutional care.

7. The applicants applied for review of the Department decision and attached the decision of the Department.

8. The applicants’ father appeared before the Tribunal on 10 May 2021 to give evidence and present arguments on behalf of the applicants. While an interpreter in the Urdu and English languages was present to assist him, he advised he was able to continue in English and spoke in English throughout much of the hearing. He was advised that at any time he misunderstood anything, to use the interpreter, which he did. He advised at the end of the hearing that he had understood everything.

9. The Tribunal accepts that at [their respective] years of age the applicants are unable to articulate fear. Therefore, as allowed for in Chen Shi Hai v MIMA, the Tribunal finds that the fears of their parents on their behalf are sufficient for the purposes of the refugee and complementary protection provisions.

10. The issues to be considered in this case are as follows:

    ·Are the applicants credible as to their claims?

    ·Do the applicants have a well-founded fear of persecution in relation to Pakistan and meet the refugee protection provisions of the Act?

    ·Do the applicants meet the protection obligations under the complementary protection provisions of the Act?

    CRITERIA FOR A PROTECTION VISA

11. The relevant criteria are outlined in Attachment A at the end of this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:

    ·The applicants’ protection visa applications of 29 September 2016, Pakistani passports of the applicants’ parents and the applicants’ birth certificates.

    ·Statutory declarations by the applicants’ father on behalf of the applicants dated 20 September 2016 outlining their claims.

    ·Copy of the Refugee Review Tribunal Decision Record dated 21 April 2015 relating to the applicants’ parents’ applications for protection visas. This was attached to the applicants’ protection visa applications.

    ·Copy of email correspondence between the applicants’ father and the [Pakistan Government Representative in Australia]. In the correspondence the applicants’ father requested, on [a day in] 2016, an update in regard to their passports and [the same day], the [Representative] of Pakistan advised of the following:

    [Details deleted.]

    ·Oral evidence from the applicants’ father provided at the Department interview held on 2 May 2017 and Tribunal hearing held on 10 May 2021.

    ·Post-interview written submission from the applicants’ former representative dated 4 May 2017.

    ·Department of Foreign Affairs and Trade (DFAT), Country Information Report Pakistan 20 February 2019.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

13. As agreed to by the applicants’ father at hearing, the Tribunal has also considered the additional information submitted with the applicants’ parents’ applications for protection visas [in] 2013 including, but not limited to, the following:

    ·The applicants’ parents’ protection visa applications of [a date in] 2013 including identity documents and attached country information.

    ·Statement of the applicants’ mother, [named], dated16 August 2013 including country information from 2013 referred to in her statement.

    ·Country information on the situation in Pakistan from 2013 provided by their representative.

    ·Response to s.424A letter received on 1 April 2015.

    ·Oral evidence from the applicants provided at the Department interview held on 17 December 2013 and the RRT (differently constituted) hearing held on 9 March 2015.

14. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    The applicants’ claims

15. In the statutory declarations made on the applicants’ behalf by their father, attached to their protection visa applications dated 29 September 2016, the applicants’ father states he arrived in Australia on a [temporary] visa on or around [a day in] 2013. He notes his wife [arrived] in Australia on a [temporary] visa on or around [another day in] 2013. He notes that [in] 2013 he and his wife applied to the Department for protection visas, his wife making her own claims for protection. He notes he made claims on the basis of membership of his wife’s family unit.

16. The applicants’ father claims the fears he has for the applicants are derived from the fears of his [wife] as they are dependent on their mother, [named], as they are members of the same family unit.

17. He fears that if the applicants return to Pakistan, they will suffer significant harm which would amount to torture, cruel or inhuman treatment and punishment at the hands of the Pakistani authorities. He claims the applicants will suffer harm and mistreatment in institutional care.

18. He fears the applicants will be harmed/mistreated by reason of being extremely vulnerable unaccompanied minors with no legal guardian and would most likely be placed in government or privately run institutional care. He claims this is because both he and the applicants’ mother will be detained by Pakistani authorities for returning as failed asylum seekers on arrival in Pakistan, for having returned involuntarily by charter flight or by emergency travel document arranged by the Australian Government. He claims even a short period away from the applicants will amount to significant harm.

19. He fears the applicants will be harmed/mistreated by reason of being members of a particular social group, being “children in institutional care in Pakistan” and “children who are separated from their family in Pakistan” and “children who are failed asylum seekers”. He claims Pakistani health and medical conditions are notorious for their inadequacy.  

20. He claims the country’s authorities will not protect the applicants because they are unable to effectively manage institutional care facilities in Pakistan.

21. The applicants also rely on the claims of the previous application of their parents as to the reason why their parents will be unavailable to care for them, resulting in them being placed in an institution. In that application their mother made claims in her statement dated August 2013, which were reiterated to the Department and Tribunal.  Their father applied as a member of the family unit and did not submit his own claims for protection.

22. Specifically, the applicants’ mother claims that she was born in Karachi. Her father is a businessman and had his own business which was operated from their home. She worked with her father in his business after she completed her [studies]. She hired two Christian girls to help with the business and her father was happy with them and “treated them as equals”. The applicants’ mother became close to these girls and they told her about the atrocities committed by local Muslim men. The applicants’ mother spoke to the Christian girls about the latest frocks and jeans and they urged her to import or order online to purchase these garments. The applicants’ mother was brought up in a conservative manner and wears the burka when she visits her relatives or in public places. The applicants’ mother was against wearing the burka all the time but due to her mother’s insistence she would wear it.  After she started to import the clothes from abroad she wore the dresses and jeans inside the burka. She would wear those clothes inside the office, encouraged by the two Christian girls, [named], but her mother and brothers were not aware of this. In 2010, the applicant married her husband who was not conservative and she was permitted to wear a scarf instead of a burka.

23. The applicants’ mother claims she subsequently invited [the Christian girls] to her place and they began a business selling western clothes by ordering online. These two girls helped her to order the clothes. After her mother in law died in 2012, the applicants’ mother had to move into her husband’s house to care for her father in law, but she continued to travel to work at her family home each day. The applicants’ father assisted their mother by importing some clothing from [Country 1] which he visited regularly for his own work. The applicants’ mother began getting orders from Muslim women for western clothes such as jeans, tops and accessories. The applicants’ mother could not deliver the items because she had to care for her father in law, but [the Christian girls] would deliver the items to customers. In about March 2012, [the Christian girls] delivered the items at a Muslim home a kilometre away. When they were returning, a group of Muslim men beat them up and took them to the police station. They were framed on false charges and remanded in custody. The applicants’ mother went to the police station to release them and was shocked to hear that they were charged with selling western clothing to Muslim girls and they would be sentenced to prison. The applicants’ mother was also shocked to hear that they were beaten by the Taliban and police officers for selling western clothes. Her father came to the police station and convinced the officers that he would not permit them to be involved in the distribution of western clothes. The girls were released on the condition that they were no longer involved in selling western clothes. The applicants’ mother spoke to the customers who told her they had ordered the clothes without the knowledge of their brothers or cousins who were members of the Taliban.

24. After that incident, the applicants’ mother feared selling western clothes. However, her customers continued to call her and asked for western items. The applicant sold [specified outfits] and burkas that she imported from India and other countries, rather than selling western clothes, and only sold the western clothing to her close friends and relatives who insisted that she continue to sell them the clothing. The applicants’ father told their mother to be careful and [the Christian girls] returned and sold the leftover items of western clothing to Christian families. The applicants’ mother also sold [dresses] and clothing for weddings and artificial jewels. Around [a specified month], the applicants’ mother was at home dealing with customers when a police jeep arrived at her home. The officers searched the entire home and when they saw the unopened consignments they questioned the applicants’ mother as to the type of business she was doing from home. They loaded the unopened consignments into the police van and took the applicants’ mother to the police station for interrogation. The applicants’ mother feared that she could be charged under Sharia law. She was shocked when [the Christian girls] were brought before her and they had been badly beaten up. The applicants’ mother could not “tolerate” the girls being tortured and insisted that her father and husband should be notified of her detention. The officers said that she had to meet the local Mullah and the local Muslim leaders who wanted to talk to her. She was kept in remand and nearly an hour later a Mullah with [other] community leaders entered the police station and ordered the police officers to produce her.

25. The applicants’ mother claims she was brought before the men and the Mullah told her that she had sold western clothes and accessories to Muslim schoolgirls and young women and had tarnished Islamic culture. The applicants’ mother was told that the partner of the young women and girls had asked that action be taken against her for disrespecting their religion and Islamic culture. The applicants’ mother had to agree to attend a Sharia Court hearing. The men who were present became angry when the applicants’ mother told them that she had not committed any wrongdoings. They shouted at her and said her head should be shaved and she should be whipped in public. They wanted to punish her and said she should be sent to a tribal area for further punishment. The Mullah told the applicant that if she did not agree to attend a Sharia court she would be falsely charged for importing arms and drugs through the consignments she ordered from [Country 1]. The applicants’ mother was kept in prison for nearly two weeks and her father and husband were not permitted to visit her. The applicants’ mother was shocked when she was released. Her husband told her she should leave the country immediately to escape from the Muslim community as they had determined to punish her in public. Her husband and father agreed to pay a huge amount of money to the mosque as a punishment and to permit her to flee the country. She was taken to [City 1] and from there she fled from Pakistan. She cannot return to Pakistan because she will be tried under Sharia law, which is a primitive law practised in Afghanistan and newly introduced by the Taliban and local militants in Pakistan. The Mullah told her father that if she returns to Pakistan she will be traced and brought to face the Sharia Court for insulting Islamic culture.

26. The applicants’ mother also referred to newspaper and journal articles (attached to the statement) which discuss the United States ordering diplomats out of Lahore due to militant attacks in Pakistan; a prison attacked by the Taliban; Amnesty International reports discussing the new Prime Minister of Pakistan being sworn in and stating that the administration must seize the opportunity to tackle human rights problems; a report on the Taliban attempting an attack on a teenage human rights activist and attacks on health workers and human rights activists and journalists; an attack on a senior politician by an opposing political party; attacks on the police by the Taliban in north western Pakistan; attacks on health workers and five teachers by the Taliban in north western Pakistan; and reports of three people killed in Karachi by unidentified persons; and a report of terrorists storming a military airbase.

27. At the Department interview held on 2 May 2017 the applicants’ father reiterated the applicants’ claim to fear return as he and his wife will be arrested once they return to Pakistan, leaving the applicants with no legal guardian. He also said they, the parents, would be detained as they had applied for asylum. He claimed that as a result, the applicants would be placed in institutional care as there is no one to look after them.

28. He said he had heard from friends that they will be separated from their children when they arrive in Pakistan as they are failed asylum seekers. He said he had also read it online. He referred to the delay and difficulties they had applying for new Pakistani passports, which they applied for in September 2015. He said he had told the local [Pakistan Government Representative] that they are on protection visas. He said he thought a BVA is a protection visa and this had resulted in them requiring special clearances from Pakistan. He said it took [period] for the passports to be granted. He said he paid a bribe of [two amounts] rupees to the [Agency 1] in Pakistan to obtain the clearance letter for the passports and this was organised by his [Relative A] and his sister, who lives in Australia, who travelled from Australia to Pakistan. As to whether there is any evidence he paid this money, he said his sister took money when she travelled from Australia to Pakistan and he sent [amount] rupees extra via [money transfer] and he has a receipt for that. He then said he first sent [amount] rupees via his sister and the rest via [money transfer]. He said his [Relative A] took the money to the [Agency 1] to obtain the clearance certificate. He said on return they will detain them at the airport and ask why they applied for protection. The delegate raised with him information that would indicate they would not be detained or face difficulties as failed asylum seekers or involuntary returnees.

29. He also referred to his wife’s legal issues in Pakistan and her having been arrested and detained for selling western style clothes to Muslim women. The applicants’ father claimed that when he paid money for her release they, including the authorities, told him they should leave and not come back. When asked if he had anything to add to the claims of his wife and those made in their application, he said only that people had told them not to return. As to why he will face problems on return as only his wife was arrested, he said that as he had paid for the release of his wife and as he saved her life by paying a bribe and organising her departure, he was implicated in her crimes and people had made comments about him “running away but we will get him when he gets back”. He said he fears the clerics and the police. He said he had information from his father-in-law that he was affected. He also said the local community put pressure on the different agencies and police.

1. He noted that institutional care in Pakistan is inadequate. He said all institutions in Pakistan are lacking and it would be damaging to the applicants. He noted this would affect them psychologically and that his daughter would be even more vulnerable as a female. The delegate asked why the children could not live with his or his wife’s family and he said his father has issues with him as he did not approve of his wife selling western clothing or him having helped her to escape. He also added that their families would not be able to or willing to look after them for more than a day.

2. The delegate raised a number of concerns as to the credibility of the applicants’ father’s evidence and referred to the findings of the previous RRT as to the claims they will be placed in institutional care on account of the difficulties their parents faced in Pakistan.

3. The applicants’ representative provided the following submission dated 4 May 2017:

   ·The applicants' mother is pregnant and is due to give birth to her third child on or around [a specified date].

   ·As to the finding of the lack of credibility of the applicants’ mother’s claims by the RRT, the lack of supporting documents does not negate the credibility of these claims.

   ·As to why the applicants’ father is of interest to the authorities when the applicants’ mother had the significant issues in Pakistan, the representative submitted the following:

   The applicants' father stated during the interview that he too had become involved in harm faced by his wife, as he had paid a significant amount of money to the mosque to secure the  release of his wife. It is plausible that the authorities would perceive the applicants' father as sharing the same view as their mother - one that supports and encourages the prevalence of western culture. This is further exacerbated by the fact that the applicants' father encouraged their mother to continue to sell Western clothes by importing clothes from [Country 1], which he visited for employment.

   Credible country information highlights the conservative sectors of the Pakistani community continue to resist acceptance of Western culture:

   Of course, not all sections of the society are pleased by cultural transformation in Pakistan's cities. Conservatives, both purists and radicals, are opposed to foreign influences for a range of reasons and resist change. Purists expect strict Islamic values, along the lines of Saudi Arabian society, and would prefer an end to cultural accretions.

   In light of this, it is plausible that as the applicants' father is of interest to the authorities as he supported their mother by assisting her with importing Western clothes as well as securing her release by paying a significant amount of money.

   ·As to concerns raised at the interview that the applicants’ parents were unable to renew their passports, the representative submitted the following:

   However, as stated by the applicants' father during the interview, he was required to pay a bribe on two occasions amounting to [amount] rupees (approximately AUD$[amount]) in order to secure a clearance letter which is generally obtained for free as part of the renewal process. Coupled with the fact that it took over [period] to obtain their renewed passports, indicates  that the applicants' parents remain of continued interest to the authorities.

   The inability of the applicants' parents to renew their passports through standard procedures, and being requested to provide additional payment in the process supports the claims that the applicants' parents are of adverse interest to the authorities. That the applicants' parents were then able to successfully obtain passports does not negate the fact that they remain of interest to the authorities. Contextually, this is easily explained by the reports on the prevalence of corruption in Pakistan:

   Corruption, lack of accountability, and lack of transparency are pervasive problems at all levels of government, politics, and the military. Pakistan was ranked 127 of 177 countries assessed in Transparency international’s 2013 Corruption Perceptions Index.

   ·Further to fears of the applicants and their situation on return is the knowledge of the Pakistani authorities about the status of the applicants’ parents in Australia. The representative submitted that the applicants' father explained that, in applying to renew his and his wife's passports, he incorrectly told the Pakistani authorities that he and his wife held protection visas and this piqued the interest of the authorities in Pakistan, and held up processing of their applications for over [period]. She referred to and attached correspondence submitted between the applicants’ father and the [Pakistan Government Representative in Australia] which the representative submits explicitly states that additional verifications are required because the applicants’ parents were understood to be holders of protection visas and notes the following:

   That the applicants' parents are not holders of protection visas is now an immaterial fact. The information that is now before the authorities of Pakistan is that:

   a)    The applicants' parents have been absent from Pakistan

   b)    On applying to renew their passports, the applicants' parents told the authorities in Pakistan that they were holders of Protection visas in Australia; and,

   c)     The authorities in Pakistan undertook further investigations and checks carried out against the applicants' parents.

   Irrespective of the profile held by the applicants' parents prior to departure, the attached evidence shows the clear and current interests of the Pakistani authorities in the applicants' parents.

   ·In response to the delegate claiming that the children could be cared for by the applicants’ [specified relatives] if the parents are unable to do so, the applicants’ representative referred to the following:

   In this regard, as the applicants' father stated during the interview, the applicants' [specified relative] has stated that their mother is no longer welcome in his home. Therefore, it is highly unlikely that [this relative] would offer to look after them on a long term basis. By extension, as the applicants' [other specified relative] also resides with [that relative] it is unreasonable to expect him to look after the applicants.

   ·The applicants’ have a well-founded fear of persecution on the basis of their membership of a particular social group being ‘children who have been separated from their family and placed in institutional care in Pakistan’. The representative submitted:

   In the likely event that the applicants will be placed in institutional care as a result of their extend family's inability and unwillingness to care for them, it is likely that the applicants will be denied basic services such as health care and education, threatening their capacity to subsist. By way of example, the shortcomings of the Pakistan health system in acknowledged in the most recent Department of Foreign Affairs and Trade (DFAT) report:

   However, the health care system suffers from lack of funding and limited capacity...Health care services vary between urban and rural areas because of difficulties associated with access and infrastructure in remote areas

   The representative also referred to the hinderance of their education particularly with regard to the second named applicant because of her gender and the likelihood of abduction if they remain in institutional care.

4. At the Tribunal hearing held on 10 May 2021 the applicants’ father confirmed that they also rely on the evidence submitted with regard to his and his wife’s previous applications. The applicant reiterated the claim that the applicants fear return as result of the difficulties he and his wife faced and that as a result, the applicants will be left without anyone to care for them and be placed in institutional care. With regard to the difficulties faced, the applicants’ father confirmed that his wife left Pakistan as she was facing difficulties as outlined in her previous application and that to release her from the police, both he and her father paid money. He said they paid money through a community person in the police station. He said the Mullahs threatened them that if they both return, his wife would be harmed and he would be also. When asked why he would be harmed, he said as he helped her to get out of jail by paying the bribe. The Tribunal asked if there was new information since he came to Australia that he was at risk. He then referred to difficulties he had obtaining his new passport. He said following submission of the paperwork to the local [Pakistan Government Representative] he was contacted by someone from [Agency 1] in Pakistan who advised him that he has their application for a clearance certificate, required for the grant of a passport and he said the man from [Agency 1] told him it was known he had applied for asylum, that it was not easy to get police clearance and that he needed to pay money. He later said that the Officer said that it is difficult for them to obtain police clearance certificates as there are still charges pending against his wife. He said he transferred [amount] rupees to his [Relative A] and he believes his [Relative B] and his [Relative A] contributed [amount] rupees, and paid this person [amount] rupees in total.

5. As to the new information he had heard which indicated he now will also be in trouble on return, he said his father-in-law advised soon after their arrival in 2013, around the time of the application for the protection visa, that the police continued to be very angry that he had helped his wife escape and had paid to have her released. He later said it was the Mullahs. He said his father-in-law said they wanted to make an example of him if he returned. He said his fear is from the community. He said he will not be detained at the airport as he had not been charged but his problem is with the community. He said they can question him at the airport but cannot detain him as he has not been charged. He then clarified that he fears harm from the Mullahs once he returns to the community as they are angry he paid money and organised for his wife to be released. He confirmed that this information came from his father-in-law soon after he applied for asylum, but said he received the information in 2014.

6. The applicants’ father said and confirmed that on behalf of the applicants they do not fear return as they and their parents are failed asylum seekers and/or involuntary returnees or protection visa applicants or holders. The Tribunal referred to his statements attached to the applicants’ protection visa applications, as to the claim of the applicants fearing return due to the consequences of their parents returning as failed asylum seekers and involuntary returnees. The applicant responded that since the applicants’ applications were lodged things have changed. He confirmed that the difficulties the applicants’ face is as a  consequence of the difficulties his wife faced prior to coming to Australia as outlined in her application and his involvement in paying a bribe to have her released and assisting her to leave Pakistan. He said there is no problem for him and his wife returning as failed asylum seekers or involuntary returnees or protection visa applicants or holders. Notwithstanding, the Tribunal raised independent information as to the treatment of returnees, failed asylum seekers and involuntary returnees to Pakistan, noting there is no evidence that they would face difficulties solely on theses bases as they departed Pakistan legally. He responded there are no legal issues on these bases anymore.

7. As to what will happen to his children on return, he referred to his wife being arrested and said he may face difficulties from the community as he helped her escape. As to why he is worried something will happen to him, he said because of what his father-in-law told him. He then referred to concerns as to the poor schooling in Pakistan, the high rate of COVID-19 and the generally poor situation in Pakistan. He said his children have difficulty speaking Urdu, and it will be very hard for them to adjust. He said that they will have no home, no good necessities and that they are used to things in Australia.  He also referred to his son having [a specified difficulty] and confirmed it was a developmental issue. He referred to his family no longer talking to him due to his wife’s difficulties and that he will have no home. The Tribunal questioned whether these matters meet the refugee and complementary protection criteria and explained why.

8. The Tribunal questioned whether he is a credible witness and outlined a number of concerns and inconsistencies in his evidence. It raised with him information as to the relevance of western clothing and its sale in Karachi, as well as information as to the influence of the Taliban in his area and over the police in 2013, and questioned the credibility of the claims.  Where relevant, these have been outlined below.

   Do the applicants have a well-founded fear of persecution in relation to Pakistan and meet the refugee protection provisions of the Act, or do they meet the protection obligations under the complementary protection provisions of the Act?

9. Having sighted a copy of the applicants’ parents’ identity documents, and on the basis of the Pakistani citizenship law[2], the Tribunal accepts that the applicants are nationals of Pakistan for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Pakistan is the receiving country.

   Failed asylum seeker and involuntary returnee

   [2] The Pakistan Citizenship Act, 1951, since 1951 holds that a child born of a Pakistani citizen father, and since an April 2000 amendment, a child born of a Pakistani citizen mother, becomes a Pakistan citizen by descent.

10. The Tribunal accepts that the applicants, together with their parents will return to Pakistan as failed asylum seekers, protection visa applicants and, possibly, as involuntary returnees. It accepts that the authorities know the applicants’ parents have applied for asylum and may believe they are protection visa holders.

11. In his statement attached to the applicants’ protection visa applications, the applicants’ father claimed that the applicants will face harm by being placed in institutional care as he and his wife will be detained and be unable to care for them on account of being failed asylum seekers and being returned involuntarily by emergency travel document. At the Department interview he reiterated this claim and gave evidence that he had advised the local [Pakistan Government Representative] he and his wife held protection visas. He submitted evidence of an email dated [in] 2016 whereby the [Pakistan Government Representative] in [Australia] advised that his passport request has been referred to the Pakistan authorities for verification as he is on a protection visa. The applicants’ representative submitted in a post-interview submission that from the evidence the authorities know the applicants’ parents have been absent from Pakistan since 2013 and they believe they are holders of protection visas.

12. The evidence indicates that subsequently the applicants’ parents were granted Pakistani passports [in] 2017.

13. Despite these claims, at the Tribunal hearing the applicants’ father repeatedly stated and confirmed that none of them will face difficulties on entry to Pakistan as failed asylum seekers, protection visa applicants or holders or returnees. He said the applicants do not fear harm on return on these bases or that their parents will be detained on these bases. He said the only issue the applicants will face is as a result of their mother being arrested at the airport on account of past charges resulting from selling western clothing and as he will be harmed by the community as he bribed officials to release her and assisted in her escape, which would result in them having no one to care for them and being placed in care.

14. Notwithstanding the applicants’ father’s evidence at hearing, the Tribunal also raised with him the following independent information as to the treatment of asylum seekers and returnees to Pakistan, which confirms the applicants or their parents will not face any difficulties as failed asylum seekers or involuntary returnees or perceived protection visa holders.

15. No reports have been located which make specific reference to returnees to Pakistan being subject to adverse treatment on the sole basis of being a failed asylum seeker.[3] While reports published after August 2016 have been located which refer to the treatment of returnees to Pakistan, these do not provide any information which indicates that a returnee would be subject to adverse treatment on the sole basis of being a failed asylum seeker.[4] In addition, no reports published after August 2016 have been located which make specific reference to former Pakistani diplomats or consular assistants being subject to adverse treatment.[5] In its February 2019 Country Information Report for Pakistan, DFAT provided information on ‘conditions for returnees’ which did not suggest that a returnee to Pakistan would be subject to adverse treatment on the sole basis of being a failed asylum seeker or involuntary returnee or attempting to migrate to the west. The Tribunal also notes that since the application the applicants’ parents have been granted Pakistani passports and would not have to return on Australian travel documents.

    [3] Sources that have been consulted during the course of the research undertaken in relation to this question include the CISNET database; internet search engines including Google, Yahoo, Bing and DuckDuckGo; the European Country of Origin Information Network (ECOI); the European Asylum Support Office (EASO) COI Portal; Lifos; ReliefWeb; the Immigration and Refugee Board of Canada (IRB); and UNHCR Refworld.

    [4] DFAT Country Information Report Pakistan, 20 February 2019, sections 5.37-5.45, pp.67-68, 20190220093409; 'EASO COI Meeting Report: Pakistan', European Asylum Support Office (EASO), February 2018, p.46, CIS7B83941393. 

    [5]

16. The Tribunal has rejected below as not credible the claim of the applicants’ father that he ever had to bribe the authorities in Pakistan to obtain clearance certificates or that the delay in obtaining the passports was as the applicants’ parents are of adverse interest to the Pakistani authorities or for any of the reasons he claims, including as the authorities are aware they are asylum seekers and/or protection visa holders.

17. On the basis of the evidence before it, including that of the applicants’ father that he no longer fears return on these bases on behalf of the applicants, the Tribunal does not accept that if the applicants were to return to Pakistan in the reasonably foreseeable future they face a real chance of persecution involving serious harm as they or their parents will return as failed asylum seekers, protection visa applicants, involuntary returnees, returnees, as the Pakistani authorities believe they or their parents hold protection visas or as they will be placed in institutional care as their parents will be detained for any of these reasons or that they will have to return on Australian travel documents.

18. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm on their return to Pakistan as they or their parents will return as failed asylum seekers, protection visa applicants, involuntary returnees, returnees, as the Pakistani authorities believe they or their parents hold protection visas or as they will be placed in institutional care as their parents will be detained for any of these reasons or that they will have to return on Australian travel documents.

    Harm as a consequence of the difficulties faced by the applicants’ parents

1. The applicants’ father claims the applicants will face harm on account of the claims made by their mother in her previous visa application as outlined above and as he paid a bribe to have her released and helped her to escape. He claims as his wife will be arrested at the airport and he will be harmed by the community, the applicants will have no one to care for them, be unaccompanied minors with no legal guardian and be placed in institutional care.

2. However, as to the applicants facing the difficulties they claim on return to Pakistan including being placed into institutional care on account of the difficulties their parents claim they faced and will face in Pakistan as their mother sold western clothing, the Tribunal does not accept that these claims are credible. It also does not accept as credible that their father has received information since his arrival that he is a target of the community and police, or that due to their parents seeking asylum or because of the difficulties their parents faced in Pakistan as a result of their mother selling western clothing, their father had to bribe [Agency 1] in Pakistan or anyone else to obtain the clearance certificate in order to obtain passports. For the reasons that follow it does not accept that these claims are credible.

3. Firstly, the applicants’ father has claimed that due to his wife selling western clothing, previously being arrested and him paying a bribe for her release and/or as the authorities are aware they are asylum seekers or holders of protection visas he had to bribe [Agency 1] to obtain a clearance certificate so he and his wife could be issued with new Pakistani passports. However, the Tribunal does not accept the applicants’ father ever had to bribe [Agency 1] or anyone else in Pakistan to obtain clearance certificates due to his inconsistent evidence as outlined below.

4. At the Department interview, the applicants’ father said he was required to pay a bribe on two occasions, totalling [amount] rupees, in order to secure the clearance certificate. He said he had to pay [amount] rupees and then [amount] rupees. He said his sister who lives in Australia carried the [amount] rupees, and then he said [a larger amount] rupees, with her when she travelled to Pakistan, and he paid the rest of it by [money transfer]. He confirmed he made two payments amounting to a total of [amount] rupees, one via his sister who lives in Australia and the next via [money transfer]. However, in contrast, at the Tribunal hearing he said and confirmed he transferred [another amount] rupees by [money transfer] and his [Relative B], and [Relative A] paid the rest and he thinks they paid [different amount] rupees and the total bribe amounted to [second amount] rupees. He confirmed he paid [amount] rupees by [money transfer], and his [Relative A] and [Relative B] paid the rest, amounting to a total bribe of [smaller amount] rupees. He initially said his sister in Australia was not involved. When the inconsistencies in his evidence were raised with him, he responded that his sister who lives in Australia took money afterwards when she travelled to Pakistan. The Tribunal does not accept this response as it does not explain the inconsistencies and only adds to the confusion.

5. The Tribunal is of the view that if the applicants’ father had to bribe the officer at the [Agency 1] to obtain clearance certificates, he would be able to provide consistent evidence between the Department and Tribunal as to how much he paid as a bribe, whether he paid or his family members paid part thereof and how he transferred the money to Pakistan and with whom. His inconsistencies lead the Tribunal to find he did not pay any bribe for the clearance certificate and it follows, as the Tribunal does not accept he had to pay a bribe, that he and his wife were able to renew their passports through standard procedures. The inconsistences add to the finding the applicants’ parents are not of adverse interest to the authorities and the applicants’ father is not a credible witness as to the difficulties he and his wife faced before they departed Pakistan.

6. In making this finding, the Tribunal has considered the email correspondence between the applicants’ father and the [Pakistan Government Representative] dated [in] 2016. However, the Tribunal does not consider that the email supports his claims that he was of adverse interest to the authorities or that he had to pay a bribe as a result. It indicates that there is a delay in issuing the passport and a clearance certificate is required. Based on the evidence lacking in credibility as to this claim, as outlined above, the Tribunal does not accept the delay is for any of the reasons the applicants’ father claims including that they are of any interest or adverse interest to the authorities for the reasons they claim.

7. Secondly, the applicants’ father provided inconsistent and confusing evidence as to being of interest on return for assisting his wife to leave Pakistan and as he paid a bribe to have her released.  At the Tribunal hearing he initially indicated that in 2013 around the time they arrived when applying for asylum, his father-in law advised him that that he had heard the police were very angry as the applicants’ father had paid for his wife to be released and helped her to flee Pakistan. However, despite claiming initially at the Tribunal hearing that it is the police that he fears and at the Department interview claiming he will be arrested at the airport by the authorities and also the Mullahs, later at the Tribunal hearing he said he did not fear being detained at the airport or arrested by the police or authorities but rather being harmed by the Mullahs and community when he leaves the airport. When the inconsistency as to whether he is of concern to the police and authorities and as to his claim of being detained at the airport was raised he said he has no issue with the police as he paid them off, it is with the local community and Mullahs and this is what his father-in-law told him. He said he now understands it is the clerics and it is only his wife who has the legal issue with the police. The Tribunal does not accept this explanation as explaining the inconsistency. 

8. Further, as raised with the applicants’ father via s.424AA, despite claiming he knew he was personally at risk since 2013 when his father-in-law told him or in 2014, he made no claims in this regard when applying for asylum with his wife in their application [in] 2013, at the Department interview on 17 December 2013 or when giving evidence at the RRT hearing (differently constituted) on 9 March 2015. Rather, the evidence indicates the applicants’ father did not make claims in his own right but rather as a member of the family unit of his wife. When the concern was raised, the applicants’ father responded orally at hearing and said he applied as a member of his wife’s family, including before the RRT and no one asked about him, they focused on his wife. The Tribunal does not accept this response and is of the view that if the applicants’ father was personally threatened in 2013 or 2014 via his father-in-law, he would have raised it before the Department or Tribunal, or his wife would have. This leads the Tribunal to find the applicants’ father was not threatened via his father-in-law as claimed. It adds to the finding he is not a credible witness.

9. Further, while not solely determinative, as it is the applicants’ father’s evidence that both he and his father-in-law paid the bribe to have his wife released, the Tribunal views as of concern how his father-in-law is able to continue living in Pakistan and facing no difficulties, as was his evidence at the Tribunal hearing, while the applicant has been threatened with harm. When questioned as to this at the Tribunal hearing he said his father-in-law is a religious person and attends the religious gatherings. The Tribunal has difficulty accepting that while both and he and his father-in-law assisted the applicants’ mother to escape by paying a bribe that only the applicants’ father is at risk even if his father-in-law is a religious person. This adds to the finding he is not a credible witness as to being a person of interest in Pakistan in the manner claimed for the reasons claimed.

10. The above leads the Tribunal to find that the applicants’ father is not a credible witness as to being of interest and to his fear of being harmed, in addition to his wife, by either the police or community including the local Mullahs as he helped his wife to escape by paying a bribe, which would mean the applicants would have to be placed in institutional care on return. The concerns and inconsistencies add to the finding he is not a credible witness as to these claims.

11. Thirdly, the applicants’ father has also claimed that the applicants will have no one to care for them and will be placed in institutional care on return as his wife was arrested and detained for selling western clothing and is of continuing interest to the police. He has referred to submissions and evidence provide to the RRT in the applicants’ parents application. He also provided a copy of the RRT decision regarding their applications with the current application.

12. In this regard the Tribunal accepts that the independent evidence provided by the applicants’ parents in their previous application establishes ongoing unrest and terrorist activities in Pakistan. The Tribunal also accepts that the independent evidence provided by the applicants’ parents in their previous application indicates that there are reports of women who have been victims of honour killings and activists and female teachers who have been abducted. The Tribunal also accepts that there is a generalised lack of respect for the rights of females in Pakistan by the Taliban and extremist groups, as well as some other sectors of Pakistani society. The Tribunal also accepts that within Pakistan society women’s rights are frequently subsumed to those of men and it is plausible that many males will insist upon their female family members wearing traditional Islamic attire. The Tribunal also accepts that there is evidence, around the time the applicants came to Australia in 2013, of some harassment by Islamic extremists of women wearing western style clothing in public.[6] The Tribunal also accepts that in 2013 there was an increasing presence of the Taliban in some areas of Pakistan, largely in the north western part of the country, but also in Karachi,[7] and a rise in Madrasa networks.[8] The Tribunal also accepts that there were reports of Jirga courts operating not only in the tribal areas but also in Karachi around the time of the applicants’ parents’ application and that in areas which are under its control in Karachi, the Taliban at the time was shutting down shops selling CDs and DVDS. It also accepts that at the time the Taliban have also been involved in settling family and community disputes and there are reports of violence committed against women in Sindh which involved the Taliban Jirga courts.[9]

    [6] See the source quoted by the delegate, Dawn News Group, “Pakistan: Karachi’s women: Persecuted or Paranoid”, 4 May 2009, which discusses upper and middle classed women in Karachi who were approached by men and warned not to leave the house without covering themselves from head to toe. The report states that women have been threatened with physical attacks and letters have been sent to women and their families warning them to not “roam freely wearing western outfits”.

    [7] See for example, BBC News: ‘How the Taliban gripped Karachi’, 21 March 2013, which discusses the levels of violence and reports of “Taliban gangs” in Karachi.

    [8] See for example, Ali, Imtiaz ‘Karachi becoming a Taliban Safe Haven?’ Combatting Terrorism Center at West Point, 13 January 2010. The report discusses the rise of sectarian and jihadist outfits in Karachi and the “tremendous growth of madrasa networks”.

    [9] Gayer, Laurent, Karachi: ordered disorder and the struggle for the city, 2014, Oxford University Press, pp.188 – 191. See also the quarterly report for 2014 of the Aurat Foundation which records instances of crimes and violence committed against women in Sindh which involved Taliban Jirga courts.

13. However, as raised with the applicants’ father at the recent Tribunal hearing, the Tribunal does not accept the independent evidence supports the applicants’ parents’ claims that the applicants’ mother was taken to the police station and detained and mistreated for selling western clothing. When the independent information was raised with the applicants’ father he said that they experienced the difficulties claimed. However, The Tribunal is of the view the independent information does not support that she was arrested or taken by police for approximately two weeks and only able to be released after her father and husband bribed the Mullah who was able to convince the police to let her out. While the Tribunal also accepts that many women in Pakistan’s cities cover their hair, neck and upper body with headscarves or shawls as an expression of modesty and piety and some cover their faces entirely, there is also evidence of considerable western influence at the time in terms of entertainment, youth culture and fashion, particularly in large urban centres such as Karachi.[10] Reports also reflect a spectrum of views among proponents of the veil as an integral form of religious expression and emphasise the importance of personal choice, although others advocate for the continuance of the practice to preserve individual and moral conduct. A report noted the comments of an Islamic scholar, when in April 2013, students in Islamabad protested the forced removal of their veils in order to be identified for their school exams. Dr Kausaur Firdous stated that covering is obligatory for all Muslim women, but “the level of practicing religion varies from person to person and it is their own choice”.[11]

    [10] See Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 29 November 2013, p.18 which discusses the pervasive western influence in many parts of Pakistan, particularly in large urban centres. See also a report from the Express Tribunal which states that Karachi is home to many global companies which find its abundant and better educated workforce and infrastructure appealing, noting clothing retailers such as Debenhams Plc, Nine West Group and Spanish clothing chain Mango which have chosen Karachi as the first location for their Pakistan outlets – ‘Affordable Breakout finally breaks into Karachi’, Express Tribune, The (Pakistan), 20 August 2013.

    [11] ‘Veil Fury as Students Forced to Show Faces’, The Washington Post, 15 April 2015.

14. Significantly, the applicants’ mother has not claimed to have been subject to only harassment in the street because she has worn western clothing or harassment from Islamic extremists because she has sold clothing to Muslim women from conservative backgrounds. She has instead claimed that she has been taken to the police station and detained and mistreated for some two weeks and only able to be released after her father and husband bribed the Mullah who was able to convince the police to let her out. The Tribunal does not accept the independent evidence supports the applicants’ parents’ claims that the Taliban had the extent of control or influence at the time over the police as they claim. In particular, the Tribunal does not accept that its control extended to the police colluding with the Taliban to detain women who are considered to have breached Islamic culture. In this regard, at that time and currently, the Taliban and its associated groups remain banned groups in Pakistan[12] and, whilst in 2013 the police were ineffective in preventing attacks, primarily against religious minorities by extremist groups, and the Taliban’s infiltration into organised crime, there are numerous reports of actions taken by the police and military against the Taliban and other Islamic extremist organisations.[13] The reports also indicate that at that time the Taliban’s main activities in Karachi are in relation to organised crime including: extortion rackets; attacks on minority religious groups, particularly Shia Muslims; and attacks on police and members of the Awami National Party, a secular party that exposes the Taliban ideology. As indicated above, there were also reports of some attacks in 2011 on music shops selling western style music.[14] The Tribunal does not accept that the evidence indicates from the time of the applicants’ mother’s arrest that they have targeted shops selling western clothing or ordering attacks on women who have sold western style clothing to women required to wear the burka, or that the Taliban is involved in such activities in Karachi.

    [12] See Department of Immigration, Issues Paper, Pakistan: Militant Groups, August 2014.

    [13] See for example the DFAT Country Information Report cited above, at p.21, which discusses the fact that around 1300 militants and members of radical organisations were arrested in 2012 including around 850 with suspected links to the Taliban. The report refers to the lack of resources and the limited number of successful prosecutions, generally due to a lack of evidence or poor investigative methods. The report also discusses the Pakistani Army and military forces intervention since the 1980s and 1990s to enforce order in Karachi and a crackdown which was launched in September 2013. See also Zia ur-Rehman and Walsh, Declan, Killings Rise in Karachi as Taliban Target Police, The New York Times, 12 August 2014, which discusses the rise in police killings since the police crackdown on the Taliban.

    [14] Zia ur-Rehman and Walsh, Declan, Killings Rise in Karachi as Taliban Target Police, The New York Times, 12 August 2014.

15. Furthermore, the Tribunal does not accept that there is any evidence from 2013, when the applicants’ mother claims to have faced difficulties, indicating that women have been detained by the police for selling western clothing or tried in Sharia courts for doing so, or any evidence that the Taliban or Islamic extremists have been involved in such matters in a large city such as Karachi. As discussed with the applicants’ father during the recent hearing, the evidence indicates that at that time there were numerous places in Karachi selling western style women’s clothing, including jeans, tops and other items of such clothing. In this regard reporting from Bloomberg in 2012 states that Karachi is home to many global companies which find its abundant and better educated workforce and infrastructure appealing, noting clothing retailers Debenhams Plc (DEB), Nine West Group Inc., and Spanish clothing chain Mango chose Karachi as the first location for their Pakistan outlets. Breakout, launched in Lahore in 2010, is a home grown and reportedly western inspired brand of men and women’s wear and had 60 outlets across the country including in Karachi.[15]

    [15] See Department of Foreign Affairs and Trade, Country Information Report: Pakistan, 29 November 2013, p. 18 which discusses the pervasive western influence in many parts of Pakistan, particularly in large urban centres. See also a report from the Express Tribunal which states that Karachi is home to many global companies which find its abundant and better educated workforce and infrastructure appealing, noting clothing retailers such as Debenhams Plc, Nine West Group and Spanish clothing chain Mango which have chosen Karachi as the first location for their Pakistan outlets – ‘Affordable Breakout finally breaks into Karachi’, Express Tribune, The (Pakistan), 20 August 2013.

16. The Tribunal therefore does not accept the extreme consequences by the police as claimed by the applicants’ parents are credible, particularly given that clothing is sold freely and western influence is considerable in Karachi. The Tribunal does not accept, therefore, that the police would be involved in detaining the applicants’ mother for two weeks as a result of a complaint made by the Mullah at the request of the Taliban. The Tribunal does not accept it is credible that complaints by males of their female family members wearing jeans under their burka to the Mullah and then to the police would result in the extreme reaction by police as claimed by the applicant. The Tribunal is not satisfied that the evidence indicates that the police are involved in prosecuting or detaining women or persons at the behest of Mullahs or the Taliban or any other extremist groups even in areas which have a greater presence of the Taliban than others.[16] This is particularly so in the area the applicants’ mother claims to be from, [named] where reports at the time did not refer to a presence of the Taliban in this area. [17] The Tribunal considers that were women or men being arrested or detained, there would be media reports at the time in relation to such incidents.

    [16] For a discussion of the Taliban influence in different parts of Karachi, see Gayer, Laurent, Karachi: ordered disorder and the struggle for the city, 2014, Oxford University Press, pp.186-193.

    [17] [Source deleted].

1. Thus, the Tribunal considers that whilst aspects of the applicants’ parents evidence are consistent with reports in relation to the rise and influence of the Taliban in Karachi at the time of their departure, the increase of Madrasas, and some harassment of women for not wearing “suitable” attire, the evidence indicates that police were taking action at the time against extremist groups and there is no evidence that women have been prosecuted under Sharia law or in Jirga courts for offending Islam by selling or wearing western clothing. Accordingly, the Tribunal considers that the applicants’ parents’ evidence as to the extreme actions taken as a result of the applicants’ mother selling western style clothing to women to wear under their burkas is not credible. This adds to the finding the applicants’ parents are not credible as to the difficulties they faced in Pakistan.

2. Therefore, for all the above reasons, considered cumulatively, the Tribunal does not accept as credible the applicants’ claims as to the difficulties faced by their parents in Pakistan and that they are of ongoing interest to the authorities, police, Taliban, community and Mullahs. The Tribunal is of the view that the claims have been fabricated and evidence concocted to achieve an immigration outcome.

3. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It is also sensitive to the length of the process and that frustrations can arise in this regard. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicants’ father on behalf of he applicants is not a reliable witness as to these claims.

4. The Tribunal therefore does not accept the applicants’ claims or that of their parents as to their mother ever selling western clothing and being approached by the Taliban, the Mullah and the police are truthful. The Tribunal does not accept that two Christian women were detained or mistreated and false charges laid against them, or that her father was involved in their release from custody. The Tribunal also does not accept that the applicants’ mother was detained by the police or that her father and husband ever paid bribes for her release. The Tribunal also does not accept that the applicants’ mother “fled” to [City 1] or that she was ever in hiding in Pakistan. The Tribunal also does not accept that the applicants’ mother has provided any evidence that the area where she lives has a strong Taliban influence and that this claim is manufactured. Accordingly, the Tribunal does not accept any of the applicants claims as to any of the difficulties their mother and father faced in Pakistan.

5. Based on the lack of credibility, the Tribunal also does not accept that either of the applicants’ parents were of adverse interest to the police, authorities, Mullah, Taliban, [Agency 1] or anyone else at the time of their departure and continue to be for any of the reasons they claim. It follows it does not accept that since their arrival the applicants’ father has been warned by his father-in-law not to return as he is wanted by the police, Mullah, community, Taliban or anyone else on account of paying a bribe to release his wife or helping her escape Pakistan. It follows it does not accept that the applicants’ father had to bribe [Agency 1] to obtain clearance certificates as either he or his wife are of adverse interest to the authorities or anyone else in Pakistan.

6. Accordingly, the Tribunal does not accept any of the applicants’ claims as to the difficulties their parents faced in Pakistan and why they departed and, as stated above, has reached the conclusion that these are not credible. It follows were they to return to Pakistan the Tribunal does not accept the Taliban will insist the applicants’ mother be tried in a Sharia court, that she will then be prosecuted and mistreated, have her head shaven and be forced to learn the Koran. It follows that the Tribunal does not accept that their parents would be arrested at the airport and detained by [Agency 1] or the police or the authorities, or their parents would be harmed on release by the community, Mullahs or the Taliban or anyone else, or that their parents would face any of the difficulties they claim. It follows it does not accept the applicants’ claims that as a result they would be unaccompanied minors with no legal guardians and have to be placed in institutional care, that they would face any difficulties in institutional care in the manner claimed which would threaten their capacity to subsist and be especially harmful on the second named applicant as she is female or the first named applicant as he [suffers] developmental issues. It follows it does not accept the applicants’ will face any difficulties by being unaccompanied minors with no legal guardian and being placed in institutional care on return as a result of their parents being of adverse interest to the police, Taliban, Mullahs, authorities or [Agency 1] or anyone else and being taken from them or harmed.

7. It also follows that the Tribunal does not accept that the applicants and their parents will have nowhere to live and will be unable to live with their families were they to return to Pakistan, as their parents did prior to leaving Pakistan in 2013, as they have been rejected by their families as their mother sold western clothing and their father paid a bribe for her release and for all the reasons associated with the difficulties the applicants’ parents claim they faced prior to departing Pakistan in 2013.

8. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicants will suffer serious harm if they return to Pakistan as they will be unaccompanied minors with no legal guardians and will be placed in institutional care, be abandoned or have no one to look after them or have nowhere to live or for any of the reasons they claim on account of their parents being arrested, detained, harmed, or being unable to care for them as their mother sold western clothes and was arrested and their father bribed the police and assisted their mother to flee Pakistan or on account of any of the difficulties they claim their father and mother will face in Pakistan which will render them unable to look after the applicants.

9. The Tribunal does not accept that there is a real chance that the applicants will suffer serious harm if they return to Pakistan on account of being members of the same family unit as their parents.

10. Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that they will suffer significant harm on their return to Pakistan as they will be unaccompanied minors with no legal guardians and will be placed in institutional care, be abandoned or have no one to look after them or have nowhere to live or for any of the reasons they claim on account of their parents being arrested, detained, harmed, or being unable to care for them as their mother sold western clothes and was arrested and their father bribed the police and assisted their mother to flee Pakistan or on account of any of the difficulties they claim their father and mother will face in Pakistan which will render them unable to look after the applicants.

11. The Tribunal does not accept that there is a real risk that they will suffer serious or significant harm if they return to Pakistan on account of being members of the same family unit as their parents.

    Generalised violence, COVID-19, poor schooling

12. In their parent’s previous application and at the recent Tribunal hearing, the applicants claim a fear of return due to the generalised violence in Karachi. The applicants’ father claimed that they do not want to return due to the spread of COVID-19 in Pakistan, the poor schooling, especially as the first named applicant is having [developmental difficulties], as the applicants don’t speak Urdu, and as they have always lived in Australia and will find it very hard to adjust.

13. The Tribunal accepts that Karachi can be a violent city which has an organised criminal network and an involvement of the Taliban in such activities. However, DFAT in its 2019 Country Information Report, indicates that security forces have sought to tackle violent and organised crime across the country, particularly in Karachi. DFAT notes that the Rangers and police have arrested a large number of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. DFAT notes that as a result, serious crime, especially in Pakistan, has reduced significantly since Operation Radd-ul-Fassad and the National Action Plan (NAP)[18] commenced in June 2014. Observers credit this preparation and the NAP with a significant reduction in the number of violent terrorist attacks.[19]

    [18] DFAT Country Information Report Pakistan, 20 February 2019 2.97 to 2.99.

    [19] DFAT Country Information Report Pakistan, 20 February 2019.

14. The Tribunal has found above that the applicants and their parents were not and are not of any adverse interest to anyone in Pakistan. The Tribunal therefore does not accept that any such harm the applicants or their parents would face as a result of generalised violence in this regard would be for an essential and significant reason as required by s.5J(1) and s.5J(4)(a). The Tribunal therefore finds that the applicants do not face a real chance of persecution if they return to Pakistan on account of the generalised violence.

15. Based on the country information as to the situation in Karachi and the Tribunal’s finding that the applicants and their parents are not of adverse interest to anyone, the Tribunal considers that the situation they will face on account of generalised violence does not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Pakistan generally and is not faced by the applicant personally.

16. The applicants’ father claims on behalf of the applicants that they will have difficulty adjusting to returning to live in Pakistan as they have been living in Australia since their birth. He refers to the poor quality of the schooling, his son’s [developmental difficulties] and that they do not understand Urdu. The Tribunal accepts that they have spent all their lives living in Australia and return will require adjustment. It accepts that the level of schooling in Pakistan is not as good as in Australia.

17. However, on the basis of the evidence before it, including that the applicants are only [respective] years of age and will return to live with their parents, the Tribunal does not accept the difficulties the applicants will face returning and living in Pakistan, including adjustment difficulties, poor education, the first named applicant’s [developmental difficulty] and their limited Urdu, amount to serious harm in s.5J(4)(b) or is analogous to the examples outlined in s.5J(5) or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal therefore finds that the applicants do not face a real chance of persecution involving serious harm if they return to Pakistan as they have lived all their life in Australia, adjustment will be difficult, the education in Pakistan is poor and they do not speak Urdu. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in s.36(2A) as they have lived all their life in Australia, adjustment will be difficult, the schooling in Pakistan is poor and they do not speak Urdu.

18. As to fearing return due to the spread of COVID-19, while the Tribunal accepts that COVID-19 is active in Pakistan, the Tribunal does not accept that any such harm the applicants or their parents would face as a result of COVID-19 would be for an essential and significant reason as required by s.5J(1) and s.5J(4)(a). The Tribunal therefore finds that the applicants do not face a real chance of persecution if they return to Pakistan due to the spread of COVID-19.

19. Further, the Tribunal considers that the COVID-19 situation they will face does not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of  Pakistan generally and is not faced by the applicants personally. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act on account of the spread of COVID-19.

    Conclusions regarding the Refugees Convention

20. The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real chance of them being subjected to serious harm in Pakistan in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicants would face serious harm for these reasons if they return in the reasonably foreseeable future. 

21. Based on all the evidence before it, including the applicants’ parents claimed past circumstances and their current personal and family circumstances and profile in Pakistan, the Tribunal is not satisfied that the applicants face a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if they return to Pakistan in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

22. The Tribunal has also considered whether the applicants are eligible for complementary protection. Findings have been made above in this regard.

23. The Tribunal has considered whether the combination of each of the individual claims raised by the applicants or their father on their behalf would together create a real risk of them being subjected to significant harm on return to Pakistan.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act.

    CONCLUSION

24. For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

25. Having concluded that the applicants do 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 any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicants satisfy 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 applicants do not satisfy any of the criteria in s.36(2).

    DECISION

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

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

    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, he or she 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.

    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 because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in Attachment B.

    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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in Attachment B.

    Mandatory considerations

    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.

    ATTACHMENT B -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …