1710906 (Refugee)

1710906 (Refugee) [2021] AATA 873 (4 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710906
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:4 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 March 2021 at 3:11pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – criminal gangs affiliated with political parties – targeted for tithes – targeted for recruitment – Mutahidda Qaumi Movement (MQM) – Pakistan Peoples Party (PPP) – Peoples' Aman Committee (PAC) – delay in seeking protection – economic motivations – effective state protection – relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The applicants] are citizens of Pakistan. They applied for the arrived in Australia [in] January 2012 on [the first-named applicant]’s student visa, for which he had applied on 31 August 2011 and which had been grated on 6 December 2011. The student visa was valid [until] March 2016. I the meantime, [the first-named applicant] applied for a subclass 572 further stay visa, which was granted, and a subclass 457 temporary work visa, which was refused on 14 September 2016.
The applicants then lodged a protection visa application on 12 October 2016. The delegate refused to grant the visas on credibility grounds on 10 May 2017. The applicants then sought merits review by this Tribunal.
[The first-named applicant] appeared before the Tribunal on 2 March 2021 to give oral evidence and present arguments. His adviser, a registered migration agent, also attended. The hearing was facilitated by an interpreter in the Urdu-English medium. [The second-named applicant], who applied in her own right, although referring decision makers to the evidence of her husband, opted not to attend the hearing either as an applicant or witness. She has not made any claims in her own right, in spite of lodging her own “Part C” application. I take it she has decided that the fate of her application relies on the outcome of her husband’s.
For the purposes of this review, the applicants submitted a copy of the delegate’s decision which includes a detailed summary of claims submitted to and discussed with the delegate. The decision record also includes descriptions of what the delegate considered to be critical issues in this matter.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 the attachment to this decision.
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 the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether either of the applicants is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the delegate’s decision should be affirmed.
Claims to the Department
In the original protection visa application, submitted to the former Immigration Department (the Department), [the first-named applicant] claimed that before he and his wife came to Australia he had become a “prominent target” of both the PPP and the MQM parties in Karachi, where he worked as a manager for [Company 1], due to his refusal to join them in carrying out targeted killings and to pay regular extortion money. He said he never wanted to join either party as he did not want to be targeted by their opponents. He claimed he started receiving death threats due to his refusal to be involved in either of these activities. He claimed he eventually capitulated for a few years in the matter of extortion money. He said he was still nevertheless threatened by both parties right up until he left Pakistan.
In the same application, [the first and second-named applicant] claimed to have lived at the same address in Karachi for ten years before flying to Australia: in a house in [Address 1] in [Neighbourhood 1], a middle class area in Karachi. Relevantly, [Neighbourhood 1] is some distance from Lyari district: I estimate, according to Google Maps, that they are around [distance] apart by road and on opposite sides of [a] River. A submission to the Tribunal dated 11 December 2020 states vaguely that [the first and second-named applicant] “lived in Lyari Town, Karachi, Pakistan, before [they] came to Australia.” This is not consistent with [the first-named applicant]’s evidence about being middle class, having a well paid job, as discussed below, and having resided from “Feb-2002” until Jan-2012” at “[Address 1]” (See f.65 of the Department file.)
Evidence to the delegate
[The first-named applicant] told the delegate that he was born and raised in Rawalpindi, near Islamabad, about 700 to 800 kilometres from Karachi, and lived there until he and his wife moved to the latter. He said he worked for a [specified] company for ten years before coming to Australia.
[The first-named applicant] told the delegate that the MQM and the PPP each had their own criminal wings. He said the PPP’s criminal wing was the People’s Aman Committee (PAC) which used to demand money by force and engage in kidnappings. He evidently told the delegate that he and his wife left Pakistan in a state of “extreme fear.” He also evidently told the delegate that when he came to Australia he knew his student visa was valid for a year and a half and decided to see what options he might have down the track. The delegate evidently asked [the first-named applicant] why he delayed lodging a protection visa for five years, after other avenues to migrate here had been unsuccessful, [the first-named applicant] evidently saying in reply that after he came to Australia a friend told him that there might only be a slim chance of being granted a protection visa. He also said he had not wanted to appear like he had come to Australia “begging” for something.
[The first-named applicant] claimed that he used to receive pressure from the MQM and the PPP to join them respectively.
[The first-named applicant] claimed to the delegate that, under threat, he paid 3,500 rupees monthly to the PAC from 9 May 2010 until he left Pakistan in January 2012. He evidently said he was unable to provide evidence of any payments because the staff at the local PAC had a number of offices in what he evidently called his home district of Lyari, and its staff in these offices was rotated on a monthly basis.
[The first-named applicant] claimed that he was assaulted and robbed at gunpoint of a watch, mobile telephone and cash by four thieves. He claimed he went to the police to report the incident and was told by them to report to the PAC, as they were unable to take any action.
[The first-named applicant] claimed that on 4 November 2011, he and others were on a bus when they were robbed by another gang.
The delegate examined the evidence of the two robberies. [The first-named applicant]’s claims to the effect that these people were acting on behalf of any political party, or harassing him for reasons of political opinion, or motivated by politics, appear at least at that stage to have been based in bald speculation.
[The first-named applicant] claimed he once saw MQM members disposing of human bodies.
[The first-named applicant] claimed that in the evening of 10 December 2011, he was grabbed and drugged on the way home from work. He claimed he awoke amongst around twenty other people in a basement somewhere, held there by masked gunmen. He said one of the gunmen spoke Urdu and that the group that kidnapped him was therefore, in his view, the MQM.
[The first-named applicant] said the gunmen took away their IDs and other items and told their captives that they would be released to their “usual jobs” but called upon later to perform “tasks” for which they would be trained. He said the gunmen told them that if they tried to relocate elsewhere in Pakistan they would be killed. He indicated that he was held for a few hours and then released in a named industrial area in Karachi. He said there was no ransom demand. I note that by this stage he and his wife had already applied for the Australian visas.
The delegate evidently asked [the first-named applicant] the kidnappers’ purpose in kidnapping him, and he evidently did not respond to the question on its point, but, rather, continued to narrate alleged events. Evidently, there were exchanges involving the delegate asking [the first-named applicant] to answer questions on their point, with [the first-named applicant] repeatedly reverting to narrative. Eventually, he told the delegate that the kidnappers told him that he was on some roster to be trained and given tasks. He told the delegate that the kidnappers said they would contact him when they wanted him and that they usually did this about a week before the day in question. Then he told the delegate that he was approached on 31 December 2011 by two young men who hugged him and told him, “Get ready for the 20th of January”. He said the same thing happened on 7 January 2012, when “in the same way they did the same thing, they hugged me and then they whispered that, ‘I think you remember the 20[th] of January’.”
Evidently, the delegate tried to examine more closely [the first-named applicant]’s deduction to the effect that the MQM carried out this kidnapping. In response, [the first-named applicant] evidently said his kidnappers were from the MQM and the PPP/PAC. As the delegate demonstrated in the primary decision, citing independent country information, the MQM and the PPP were and remain “strong rivals.”
[The first-named applicant] claimed that he never told his family anything about his troubles in Karachi. He indicated that his family members had not come to any harm or been put under any pressure by anyone searching for him, say, after noticing he had relocated away from Karachi and being able, as he claimed, to trace him anywhere in Pakistan. He did say, however, that if he returned to Pakistan his family members would be harmed, but did not appear to provide any detail as to how this might be logical, which is particularly of interest to the Tribunal as he evidently also told the delegate that his persecutors would not harm his family as the matter was one that was just between them, the persecutors, and him.
The delegate evidently asked [the first-named applicant] why so many of the facts in his oral evidence had not been included in his original protection visa application, and [the first-named applicant] evidently said that this was because he had preferred to keep the matter to himself and wait until he could speak face to face about his claims.
The delegate allowed [the first-named applicant] to make a further submission in response to issues raised at the protection visa interview.
In a statement dated 27 April 2017 [the first-named applicant] said, through his adviser, that he did not immediately apply for protection in Australia because he and his wife did not want to obtain residency as refugees. [The first-named applicant] went on to say that he and his wife preferred to be recognised for their skills rather than their protection needs, until they had no other option once their 457 visa application failed. [The first-named applicant] said he had had a well-paying job in Karachi and would not have come to Australia unless his life were in danger.
One issue arising from the last claim is that [the first-named applicant] was also saying in this submission that he and his wife wanted to migrate to and obtain residence in Australia based on skills. They did this by applying for a student visa on 31 August 2011, which fell before the alleged violent events of September, November and December 2011; up until then, [the first-named applicant] was purportedly just paying 3,500 rupees a month out of the salary from his purportedly well-paying job. This does not sound like danger motivating “extreme fear.” as at 31 August 2011. He claimed that citizens were commonly operating under an obligation to pay money to extortionists. 3,500 Pakistan rupees are about A$24.00. Meanwhile, Pakistani citizens move from city to city, for instance, to follow their careers and to improve their circumstances.
In the post-interview statement, [the first-named applicant] said that the MQM and the PAC had their own rival criminal gangs in Lyari district and were often involved in gang wars against each other. He was later evidently confused about this when he told me that there was only one criminal gang and that it belonged to both the MQM and the PAC. When I asked him how that was possible, since the parties were vehemently and often violently opposed, he said that “inside,” they were “actually one” party. This claim, contradicting independent country information cited by the delegate, and also contradicting [the first-named applicant]’s other evidence, struck me as nonsense.
Regarding the 7 September 2011 robbery, [the first-named applicant] claimed that at the time he told the robbers he was already paying money to their group, whereupon he was “slapped, pushed and verbally abused.” He did not indicate how he came to link the thieves with the PAC, except to say that the police took no interest in the matter and referred him to the local PAC.
Regarding the alleged 10 December 2011 kidnapping, [the first-named applicant] said that he and other captives were told that they were henceforward under the control of their captors and ordered not to flee to any other part of Pakistan lest they be traced within a month and killed. He said he was warned not to divulge to anyone any details of this encounter. He claimed that his captors know he has knowledge of details regarding their violent activities. He said the gang would be all the more vigilant considering he has spent several years outside of Pakistan. However, at the interview with the delegate, his evidence on these subjects was evidently vague. He also told the delegate orally and in writing that “most people in [Pakistan] would testify to the existence of such extortion money, which [is] obtained ruthlessly by local operatives of gangs having affiliation to political parties.” Having said that, it struck me that [the first-named applicant] might be suggesting that his knowledge did not stand him out from the population in general. However, to be fair, he was claiming in this part of his written statement to the delegate that he feared being imputed by the gang that captured him of having seen their operations from the inside; therefore, if I accept that the kidnapping occurred, this imputation on the part of the captors becomes something to consider.
Answering a concern about why he and his wife took so many weeks to leave Pakistan in the claimed circumstances, [the first-named applicant] told the delegate in his statement that he did not have his student visa in his passport until 22 December and that flights out of Pakistan were too fully booked by that time for him to be able to leave before 14 January 2012.
The delegate did not accept that [the first-named applicant] had ever been kidnapped as claimed.
I was not able to make a decision favourable to [the first-named applicant] on the evidence he had given to the Department alone.
Independent country information
I have had regard to the DFAT Country Information Report: Pakistan, of 20 February 2019:
Mutahidda Qaumi Movement (MQM)
3.163   MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.
3.164   In 2013, the Rangers – a federal, paramilitary force - (see Police, Frontier Corps and Rangers) commenced operations in Karachi that significantly reduced political violence. MQM leaders claim the Rangers disproportionately targeted MQM, affecting over 500 families since 2013. MQM claims that, since 2013, over 140 of its members were subject to enforced disappearances and over 100 to extra-judicial killings. MQM further claims that government forces detained more than 1000 of its members in the same period. MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.
3.165   While numbers are difficult to verify, reports indicate the Rangers killed many MQM members during operations against alleged violence and extortion. In August 2016, the Rangers announced they had apprehended 848 assassins affiliated with MQM ‘militant wings’ since September 2013. The Rangers claimed that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. MQM suspects have reportedly confessed to involvement in 5,863 incidents of targeted killings.
3.166   Militant groups such as the TTP have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years. Anti-MQM sentiment is also connected to allegations that MQM has links with Indian intelligence. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.
3.167   In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address from London to MQM supporters on a hunger strike in Karachi. Altaf allegedly urged supporters to attack media outlets that did not give MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. The attack and subsequent violent clashes with police killed one person and injured several others. Rangers sealed MQM’s offices in Karachi, launched a treason case against Altaf, and arrested five MQM leaders in Karachi.
3.168   Anti-Pakistan rhetoric in Altaf’s speech led to senior MQM leaders to declare they would no longer answer to Altaf and run the movement from Pakistan. The party split into two factions, one loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based party officials (MQM-Pakistan). The government formally recognised MQM-Pakistan (MQM-P) and its former leader, Farooq Sattar. Sattar was replaced by Khalid Maqbool Siddiqui as the leader of MQM-P in February 2018.
3.169   DFAT assesses that MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.

Since the applicants resided in Pakistan and Karachi, Sindh province in particular, the MQM is reported to have been decimated by internal schism and assassination:
On 18 June [2020], an antiterrorism court in Islamabad closed a final chapter in the history of the Muttahida Qaumi Movement (MQM), a political party that once represented Mohajir nationalism, lorded over urban areas of Sindh province, including Pakistan’s economic heart Karachi, and was a force to reckon with in national politics.
The court sentenced three men to life in jail for the murder of MQM leader Imran Farooq in London in 2010. More significantly, the court held the MQM’s supreme leader Altaf Hussain responsible for it, having been ordered the fatal hit of the man who once was his trusted lieutenant and the party’s chief ideologue.
… [The] party that once dominated Sindh’s urban middle class finished, with a big void in it, Mohajir nationalism no longer a potent force it once was.[1]
[1] “Closing of MQM chapter in Pakistan’s politics,” Raisina Debates, 25 June 2020,
Independent reporting[2] indicates that the PPP is a diminished political force in Pakistan:
Today, the People's Party is a shadow of its former tumultuous self, a once-mighty political force that held power repeatedly during three decades but has fallen precipitously in popularity …
The party suffered a crushing defeat in the 2013 national elections, handing power to its longtime rival, the Pakistan Muslim League-Nawaz. Today, its influence in Parliament has been reduced to its longtime stronghold, Sindh province. It also faces new competition from the Pakistan Justice Movement, led by cricket star Imran Khan, which has siphoned off much of the youth and labor vote.
[2] “Once a mighty political force, the Pakistan People’s Party is struggling to make a comeback,” The Washington Post, 11 December 2017,
Evidence of the longstanding and unresolved enmity between the MQM and the PPP is discussed in Minorities at Risk Project, Chronology for Mohajirs in Pakistan [2004] at Refworld.com.[3]
[3] >
Lyari has been described as a “sleepy lower income area of Karachi”[4] and a “no-go area” for citizens and visitors in Karachi.[5]
[4] “Gangs of Lyari: Brutal tales of violence from Karachi’s ‘wild west’,” Hindustan Times, 18 April 2016,
[5] “Lyari, Karachi's ‘no-go area’,” Peace Insight, 24 October 2011, Lyari, Karachi's ‘no-go area’ — Peace Insight
The demise of the PAC is described in the following 2016 report:
When Benazir Bhutto returned to power, her government worked on the uplift of Lyari. But other political forces had encroached on its turf, most notably the MQM, which flexed its muscles through Pappu’s gang. After Benazir Bhutto’s death in 2007, it was her widower Asif Ali Zardari’s government that supported Rehman Dakait to form the “People’s Aman Committee” (PAC) to take on the MQM. The PAC had its work cut out and wars erupted between the gangs of Rahman Dakait and Arshad Pappu.
The PAC went out of control and kidnappings rose significantly in Karachi. PAC members started collecting “protection money” across the city. But its biggest mistake was when the PAC refused to endorse Zardari’s half-brother as a candidate for MP from Lyari.
Relations between the PPP and the gangsters soured and the PAC was banned in 2011. A police action led to the death of Rehman Dakait in 2009. His empire was taken over by his cousin Uzair Baloch. This was contested by Baba Ladla, an ally of Rehman Dakait and Baloch, who formed his own gang.
After a particularly bloody round of violence in Lyari, Prime Minister Nawaz Sharif ordered the paramilitary Pakistan Rangers to take control. The operation started more than a year ago and more than 1,000 men were taken into custody …[6]
[6] “Gangs of Lyari: Brutal tales of violence from Karachi’s ‘wild west’,” Hindustan Times, 18 April 2016, >
There is independent evidence of the PAC was banned in 2011 and several of its remnant offices in Lyari razed in 2016:
Amid a crackdown against illegal offices of the Muttahida Qaumi Movement in the city, the authorities launched an operation on Saturday to demolish offices of the banned People’s Aman Committee (PAC) in Lyari.
Police said three offices were razed with the help of bulldozers in Baghdadi, Kalakot and Chakiwara localities. They said the offices had been constructed on government land.
The police further said all illegal offices of the PAC would be demolished in the city. Saturday’s action followed the completion of a survey of such offices in Lyari, Yousuf Goth, Malir and Old Golimar.
[A] PAC leader … who had fled the country after the start of the Karachi operation in September 2013, was arrested after his return to Karachi in January this year.
Separately, three more MQM offices were demolished which had been constructed on government land illegally, according to the Anti-Encroachment Cell. [7]
[7] “Five offices of banned PAC razed in Lyari,” The News, 18 September 2016,
Evidence to the Tribunal
[The first-named applicant] told me his brother and one unmarried sister live in Rawalpindi in their family home. He said his parents are both deceased. He said he has another sister who is married and lives in a village. He said his brother is married with three children all at school and is [an] employee at [a specified workplace], working as a [Occupation 1]. [The first-named applicant] described his siblings life as stable and untouched in any way by the alleged problems and events described in his protection visa application. He said he and his family never supported any political party, although he himself did vote once in 1997, for the PML.
Specifically, [the first-named applicant] told me that his brother in Rawalpindi knows nothing about his, [the first-named applicant]’s problems with the politically-affiliated groups or gangs because he, [the first-named applicant], had never told him anything. I asked him why he had not done so as, in the claimed circumstances, it might have helped his brother and his family to be prepared for any intimidating and unwelcome encounters or events. I was also surprised that, in the claimed circumstances, he had not been curious about whether his brother had been approached by anyone relevant to this application.
[The first-named applicant] said he did not discuss anything with his family because were the gang that kidnapped him to find out he had said anything to them, there would only be more trouble.
[The first-named applicant] said the people he was talking abut a re a criminal gang jointly supported by the MQM and the PPP. I put to him that it sounded implausible and absurd that one gang could serve both parties at the same time. The MQM and PPP had always been rivals, apart from a brief, pragmatic national coalition led by the PPP during Benazir Bhutto’s government in the 1980s, and an “on again/off again” local coalition in Sindh between 2008 and 2013. A recent attempt by three parties including the MQM and the PPP to unite against a common political enemy has fallen apart.[8] This was when [the first-named applicant] said that the two parties were really one party underneath, or “inside” as he put it. I put to him that independent country information strongly contradicts his position on this point and he said, “When I came here, they were in [a] coalition.” As already noted, that claim is somewhat true, as there was some kind of a pragmatic coalition in Sindh province at the time:
The MQM was part of the PPP-led Sindh government from 2008 till 2013, but had pulled out from the coalition and subsequently reconciled with the party several times. In February 2013, the MQM quit the coalition for the last time before the general elections, when it accused the PPP of patronising the Peoples Am[a]n Committee and supporting Lyari gangsters.[9]
[8] “Three-party body to run city affairs suffers from lack of trust,” Dawn, 18 August 2020,
[9] “Coalition of convenience: MQM accepts PPP offer, joins Sindh govt,” OPEMAM, 23 April 2014,
However, on the evidence before me, it is far from correct to suggest that the two parties were really united at heart. Meanwhile, politics in Sindh have evidently left the MQM behind, with the PTI and the PPP occupying highest offices there, although the PPP’s members of the provincial cabinet recently moved to quit the provincial government.[10]
[10] “Sindh cabinet members say ready to leave Sindh govt, PA,” The News, 10 December 2020,
Oddly, after arguing that the MQM and the PPP/PAC shared a criminal gang, [the first-named applicant] went on to say that their rivalry to have dominion over criminal activities in Karachi “divided” the city. Here, as elsewhere, his evidence struck me as confused.
I asked [the first-named applicant] why he even needed to live in Karachi: the two parties he was talking about evidently had little to no significant influence outside of Sindh. In reply, he said there were good jobs there. After saying he had had no choice but to leave Rawalpindi, where he had worked as a [Occupation 2] at a hospital, he modified this claim eventually, saying that he found a better, higher paying job in 2002 in Karachi and chose to move there. When he confirmed that he had never suffered any potentially relevant harassment in Rawalpindi, I asked him why he could not relocate back there. In reply, he started to recite, as it were, previously written information about the alleged 10 December 2011 kidnapping. This went on for some time, and I asked [the first-named applicant] to tell me why he could not relocate back to Rawalpindi. Instead of answering the question on its point, [the first-named applicant] continued to describe the alleged kidnapping. Eventually he said that the kidnappers told him that if he tried to leave Karachi they would find him and kill him. I asked him if those captors might not have been bluffing and he said they were trained PAC gunmen. Here [the first-named applicant] said something clearly inconsistent with what he told the delegate, according to the primary decision record, when he identified his interlocutor during his detention as an MQM gunman. (See paragraph 24 above.)
[The first-named applicant] continued to describe the alleged events of 10-11 December 2011, giving an account of his release conditional of his having “to come back” when they called him to do so. I asked him how he could possibly “come back” given his description of having been drugged and prevented from knowing the location of the base to which he was supposed, at some stage, to return. In response, he repeated the information about the men who hugged him on two later occasions and told him to remember 20 January 2012.
I acknowledge some brief confusion on my part as to whether [the first-named applicant] had described to the delegate his alleged encounters with the men who hugged and warned him in December 2011 and January 2012. I have confirmed that he did indeed tell the delegate, just as he claimed during the hearing.
I asked [the first-named applicant] what he thought his captors did when he did not present himself on 20 January 2012, and he said they were “maybe” looking for him. I put to him that if it were merely a matter of “maybe,” then it might be equally valid to say that “maybe” they were not looking for him. In reply, [the first-named applicant] said that people like this, who had his name and ID details, would still be able to track him down after ten or twelve years. I put to him that his alleged adversaries did not seem to have made any contact with his family members, and he said they might have posed as innocuous persons in seemingly innocuous conversations that his brother might not have recognised as inquiries made by killers. I put to [the first-named applicant] that, in light of how he posited this, it seemed like bald speculation. He did not disagree.
[The first-named applicant] confirmed at the hearing that he thought it was the PPP/PAC who kidnapped him. Then he said that some of them spoke Urdu, suggesting that they might be MQM. Then he said that at no time did the group mention its political alignment. Meanwhile, he tabled at the hearing a statement of claims that he said he had given to his migration agent in late 2020: in that statement he said that he came to know that one member of the group that kidnapped him was with the MQM, while another was clearly a member of the PPP/PAC. Here he seemed to adhere to the notion that the gang was working for both parties at the same time. This did not appear to sit with his claims at various stages in the process about the two parties having their own separate criminal wings in violent conflict with each other.
I put to [the first-named applicant] that both the PPP and the MQM were, now eight or nine years since 2012, much depleted socio-political forces in Karachi and Singh and therefore in Pakistan generally. I indicated that I have to make a determination about the reasonably foreseeable future. I put to him that the parties’ resources would have diminished with their size and influence and that this would logically reduce, possibly drastically, their capacity to resource the kind of search for him that he claimed still to fear. In reply, he said he was talking about “that time,” i.e., 2011-12. I reminded him that I had to consider the present and the reasonably foreseeable future. In reply, [the first-named applicant] said that there are “still free roaming” criminals in Pakistan.
I considered what [the first-named applicant] was saying, but his description of the people who allegedly kidnapped him suggested they were the militant wing of one rival party or another (or both at the same time). I put to him that according to independent information, the Pakistani authorities had demonstrated at least since 2016 both a willingness and highly effective capacity to crack down on violent and criminal wings of political parties specifically including the MQM and the PPP/PAC. (see paragraphs 40 and 41 above.) In reply, [the first-named applicant] said that the information I was putting to him was true, but the situation now was that the parties were now driven underground and were both still looking for people like him; he provided no material to support this seemingly bald assertion.
[The first-named applicant] then said that when these two parties were in power before they would use police contacts to help them trace returning political enemies whose deaths would then be arranged in rigged traffic accidents. Again, I put to [the first-named applicant] that neither the PPP nor the MQM retain the power in Karachi, Singh or Pakistan that the used to have. He then said that the PPP has a presence in the Sindh government, which is arguably correct, given its coalition role in the government there at least until recently. (See paragraph 47 above.).
Again, I asked [the first-named applicant] why he could not relocate to Rawalpindi. This time he said it was because he has a wife. I asked him why she could not live with him in Rawalpindi and he said she would live with him wherever he is. I put to [the first-named applicant] that that it seemed far-fetched that agents of the MQM or the PPP, whether separately or united in ways he claimed they were back in 2011, would have any interest in searching for him on return to Karachi or Rawalpindi, or anywhere else in Pakistan in the reasonably foreseeable future. In reply, he said it was not far-fetched but normal.
I put to [the first-named applicant] that according to him, his alleged captors on 10 December 2011 tortured and threatened obviously non-compliant civilians for a few hours and then let them go, seeming to be confident that they would all answer a later call-up and serve their cause. I put to him that this seemed far-fetched. In reply, he gave a short history of criminal gangs in Karachi who looked to recruit people like him who came there from other places.
I summed up for [the first-named applicant] what appeared to be relevant facts to consider in the process of assessing whether there was a real chance or real risk of relevant harm in his case: the gang (or gangs) he described appeared to be a localised criminal fringe of a long-since weakened local political entity; neither the MQM nor the PPP were in power or in leading coalition positions anywhere; the authorities under the new national government had long since cracked down on criminal gangs affiliated with the MQM and the PPP; the decimation of these parties’ influence likely meant that they had much reduced resources for then or their criminal wings to afford to maintain any interest in people they kidnapped and failed to control some eight to nine years ago. In addition, I mentioned that the activities of the authorities indicated the availability of effective state protection against the kinds of criminal he claimed to fear. Furthermore, I put to hi that on the evidence before me, it appeared a safe, practicable, affordable and viable alternative for him to relocate back to Rawalpindi.
In response, [the first-named applicant] said that he would not have moved from Karachi to Australia if his claims were not true. I considered this response, even though the critical factor I was raising with him at this stage was whether there was, in his and his wife’s case, a real chance of being persecuted or a real risk of significant harm. Since he raised the credibility issue, though, I then put to him that he had admittedly moved from Rawalpindi to Karachi to follow a career opportunity and that in that light, and given what he had said about wanting to migrate here on skills grounds, it was not inconceivable that he travelled from Karachi to Australia for a similar reason. In response, [the first-named applicant] said he came to Australia to save his life.
I invited [the first-named applicant] to comment on negative inferences drawn by the delegate, in her decision record, about the delay on his part in seeking protection in Australia from refoulement to Pakistan. In reply, he said he thought, at the time of his arrival in Australia, that he would study and acquire skills enabling him to be granted residence. He then said that when the company sponsoring him failed in the application, he sought protection because he could not go back to Pakistan. I asked him if he did not think over those first five years here that his protection case might become weakened by the passing of time and changing of relevant circumstances and conditions in Pakistan. In reply he said his attention at the time was not on “get[ting] into the protection visa system.”
I asked [the first-named applicant] if he wanted to discuss anything else, and he said that he and his wife had been here in Australia for ten years, and that he would encounter cultural differences if he went back to Pakistan. He said he is not young anymore.
I considered that [the first-named applicant], at his age, might be less desirable as a recruit for targeted violence and other missions on behalf of the group that kidnapped him. He had described the other kidnapping victims as young, some of them children. I put to him that I had not been able to find any evidence of the kind of recruitment practice of unwilling young people in Karachi by the MQM or the PPP/PAC, or any other group, such as he had described in his claims, let alone of any current practice. In reply, he said that “at that time the situation was different.” He said his former captors would nevertheless trace him to Rawalpindi if he goes there.

It has been submitted that [the first-named applicant] was targeted for tithes and other things because of his profile as an “office worker.”
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]
[11] MIMA v Rajalingam (1999) 93 FCR 220.
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[14]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[14] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the first-named applicant] is from a middle-class family that lives in Rawalpindi, near Islamabad. I accept that his family is not involved in or impinged upon by political activity in Rawalpindi. I find on the evidence that [the first-named applicant] and his family have had a stable life in Rawalpindi. I give some weight in this matter to [the first-named applicant]’s family in Rawalpindi having been untouched by events relevant to the present protection visa application. I give some weight to [the first-named applicant] having been employed in Rawalpindi, even though he said the job he had was not as satisfactory as the one that attracted him to Karachi. I note and give weight to [the first-named applicant] having moved from Rawalpindi to Karachi for work and economic improvement. On the basis of this stated ambition and his choice of job, as well as on the basis of information he originally provided to the department in his original protection visa application, I do not accept that [the first-named applicant] lived in or worked anywhere near Lyari district. I do not accept that he would have swapped middle class life for something more like slum-dwelling. I find it would be very unlikely for a company manager to be inclined or limited to living in Lyari.
[The first-named applicant]’s claims in this matter are substantially reliant on the position that he and his wife lived in or near Lyari, a claim that, on the evidence before me, I consider to be false and misleading.
This does not mean it is inconceivable that members of the now-defunct PAC found a way to demand 3,500 rupees a month from him and other middle class residents of Karachi “at that time,” as he put it. Although I have some problems with the likelihood of his being targeted for tithes, given the circumstances of here he lived and worked, I am prepared to consider that [the first-named applicant] did pay such a tithe for around two years until he left for Australia in January 2012. However, the harm this caused [the first-named applicant] in paying the tithe demanded “at that time,” leaving aside for the moment whatever (vaguely described) threat might have been invoked to enforce it, was not sufficiently serious on the evidence before me to be persecution. I do not accept that [the first-named applicant] faced a real chance of being persecuted in relation to the tithe he paid, because he did not suggest that the amount he paid was particularly onerous: he said he was well-paid. In any event, there has been a significant chance on circumstances in Karachi, Sindh and hence Pakistan, with shutting down of PAC offices, the disintegration of its allied gangs and arrests of its leaders and members. I am not satisfied that [the first-named applicant], whether as an office worker or in any other capacity, faces real chance of being forced to pay tithes to any political group in the event of return to Karachi or, for that matter, his home city Rawalpindi.
I give some weight in this matter to the fact that [the first and second-named applicant] lodged their Australian student application on 31 August 2011. I recall [the first-named applicant] having claimed that he and his wife would not have come to Australia were they not in “extreme fear” of danger to their lives, or his life at least, because he had a well-paying job in Karachi. As noted, however, [the first-named applicant] has also claimed that he and his wife wanted to migrate to Australian and secure residence here based on occupational skills and, therefore, economic factors. This forms a pattern with the move from Rawalpindi to Karachi, which was also economically motivated. More to the point, as also noted, the applicants had already applied for the Australian student visa on 31 August 2011, which fell before the alleged violent events of September, November and December 2011. In this light, I do not accept that they chose to come and study in Australia in states of “extreme fear” as claimed.
Nevertheless, the applicants claim that after they chose to come to Australia there were several significant events that generated “extreme fear.”
I accept that [the first-named applicant] was assaulted and robbed of personal property on 7 September 2011. None of the evidence before me satisfies me that the thieves identified themselves as agents of the PPP or PAC. Whether or not [the first-named applicant] spoke to the thieves as though he thought they were from the PPP/PAC is another matter. In any event, the PAC and its criminal networks have at least since 2016 been decimated. Taking all of these factors into account, I am not satisfied that the claimed episode of 7 September 2011 has any weight in this matter, either on its own or cumulatively.
I make similar findings in relation to the alleged November 2011 robbery and assault on the bus. As described by [the first-named applicant], this event strikes me as a random robbery motivated by criminal expectations of mercenary gain. In any event, if any of the gangs affiliated with the PAC or the MQM were involved, I do not accept on the evidence before me that they were specifically targeting [the first-named applicant], let alone for any reason cited in s.5J(1)(a) of the Act, or that such gangs with the specific affiliations described continue to exist in Karachi. I find that this was a random event, notwithstanding it followed soon after the 7 September 2011 event. For all these reasons, I give the episode very little weight either on its own or cumulatively.
On the evidence before me, I do not accept that [the first-named applicant] was kidnapped on 10 December 2011. Since I do not accept that this kidnapping occurred, it follows that I do not accept that this or any related events pushed [the first-named applicant] to flee Pakistan, let alone before 20 January 2012. In the circumstances, I am of the view that he travelled to Australia comfortably ahead of a post-Christmas/New Year study semester. My reasons are as follow below.
[The first-named applicant] mentioned nothing in his primary application about having been kidnapped. He has given reasons for what he said was a lack of detail, but I do not accept these. I have given some cumulative weight to this factor.
More significantly, [the first-named applicant]’s evidence about the identity of the gang has been inconsistent and contradictory throughout this application. He has relied on the notion that the criminal gangs engaged by the rival parties coalesced into a single body whenever the parties did His suggestion that the gang was one that was jointly or commonly engaged by the rival parties MQM and PAC, notwithstanding that they have occasionally formed pragmatic coalitions in elected assemblies, struck me as being simplistic, far-fetched and fanciful. I also consider it far-fetched to the point of being fanciful that a gang, a violent paramilitary group, by [the first-named applicant]’s description, would go to the trouble of kidnapping around fifteen to twenty people in elaborate operations involving anaesthetic drugging, torture and managed captivity under arms in a secret location, with the intention of training them to perform targeted killings, only to release them, or some of them, such as [the first-named applicant], within a few hours, conditional only on their returning to their normal lives to await a later call-up under threat of being traced and killed. I find it far-fetched to the point of being fanciful that the gang described needed civilians such as people with “no social networks” or “people originating from “outside Karachi” to carry out the kinds of actions that feared local gangs respectively used to do on behalf of the MQM and the PAC. I find it far-fetched that a gang like the one described would have relied recruiting, even with coercion, people who may have had little or no subjective sympathy with their objectives or methods, or even in politics generally.
Accordingly I do not accept that [the first-named applicant] was kidnapped or coerced on 10 December 2011 as claimed, or that any events flowed from the alleged event, such as allegedly involved advice or reminders about an obligation on 20 January 2012.
In the alternative, say, in circumstances were I to accept that the kidnapping and the subsequent two encounters occurred, independent evidence would led me to give more weight to significant social-political events having occurred since 2011-12, such that have decimated the MQM and the PAC and weakened the PPP. In light of this, I find it far-fetched to the point of being fanciful that [the first-named applicant] would be traced and killed, in Rawalpindi or anywhere else.
It is not necessary to make findings about effective state protection or relocation as I am not satisfied on the evidence before me that [the first and second-named applicant] face a real chance of being persecuted in Karachi in the reasonably foreseeable future. However, I find on the independent country information cited above that if they choose to reside in Karachi, they would be able to avail themselves of effective state protection there, the authorities having demonstrated willingness and much capacity to decimate the influence of criminal gangs such as those that existed in Lyari back in 2011-12. Should the applicants prefer not to reside in Karachi, I am satisfied on the evidence before me that it would be safe, reasonable and practicable to relocate back to Rawalpindi.
On the evidence before me, I am not satisfied that the applicants face a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. Their claimed claimed fear is not well founded. They are not refugees.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that the applicants are citizens of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm the applicants identify in their claims include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”. [the second-named applicant], though an applicant in her own right has made no claims of her own. It is reasonable to assume, however, that the harm she claims to fear is the collateral harm arising from her husband being significantly harmed on return to Pakistan.
[The first-named applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His refugee status claims have failed due to lack of credibility and/or failure to meet the “real chance” test. In view of their lack of credibility and/or their failure to meet the “real chance” test, those claims can no more succeed as complementary protection claims.
In the alternative, I find that the applicants could obtain, from an authority of the country, protection in Karachi such that there would not be a real risk that they will suffer significant harm. Also in the alternative, I find that it would be reasonable for the applicants to relocate to Rawalpindi where there would not be a real risk that they will suffer significant harm.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that the applicants will suffer significant harm.
Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, they do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
Member

ATTACHMENT - 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.
…

[2021] AATA 873

4 March 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies