1712158 (Refugee)
[2017] AATA 2841
•17 November 2017
1712158 (Refugee) [2017] AATA 2841 (17 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1712158
COUNTRY OF REFERENCE: Pakistan
MEMBER:C. Packer
DATE:17 November 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 17 November 2017 at 4:57pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Race – Ethnic Sindhi – Particular social group – Sindhi shopkeepers – Imputed political opinion – Opposition to Muttahida Quami Movement – Fear of the enmity of Muttahida Quami Movement (MQM) party activists – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994, Schedule 2
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
The applicant is a man aged [age], born in Pakistan and a citizen of Pakistan.
The applicant arrived in Australia [in] February 2016. The delegate’s decision shows the applicant claimed to have held a genuine Pakistan passport until a people smuggler took it in [Country 1]. The delegate’s decision indicated that Departmental records show the applicant travelled to Australia under another identity.
[In] October 2016 the applicant applied for a Protection [visa].
[In] January 2017 the applicant attended an interview with a delegate of the Minister for Immigration.
[In] June 2017 the delegate refused the application under s.65 of the Migration Act.
On 8 June 2017 the applicant applied for review of the delegate’s decision.
[In] August 2017 the applicant was granted a Bridging E visa and released from [detention].
On 6 September 2017 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on two main elements: his Sindhi ethnicity and his fear of persecution at the hands of other ethnic groups and Urdu speakers; and a claimed fear of the enmity of Muttahida Quami Movement (MQM) party activists. He says the MQM enmity arose because he was a shopkeeper who had stopped paying extortion money to the party, and this led to his shop being torched during city-wide rioting in December 2009. He says the activists became aware that following the shop fire he had lodged a complaint with the police against the party and so they pressured him to withdraw the complaint. He says that after a violent abduction in March 2012 he went to the police and withdrew the complaint but then lodged another complaint about the abduction. He says the party activists continue to look for him to kill him. However, my great concerns with significant elements of the applicant’s narrative and evidence lead me to disbelieve that he had ever been a shopkeeper, or had a shop torched by MQM party activists, or that he had come to their adverse attention at any time. I find that he has not in the past and will not in the future in Pakistan come to the adverse attention of the MQM party activists for the reasons he claims. Nor do I accept there is a real chance his Sindhi ethnicity will lead to him being harmed. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant was stopped, interviewed and then detained at [an Australian] airport [in] February 2016. In the written application, the applicant claimed that he was born and raised in Karachi and is of Sindhi ethnicity. He has not married and is a Muslim Sunni. He indicated he had completed his schooling and attained a [qualification]. He indicated employment including: [several occupations] and long periods of unemployment. He indicated he had parents and [siblings] in Karachi, and a [relative] in [Country 2]. He claimed he departed Pakistan in late 2015 for [Country 1], and then transited via [another country] when he travelled to Australia in late February 2016. At the hearing the applicant said the family continue to live in the family home in Karachi. He said that after his release from detention he has lived at a hotel in [an Australian city] and receives Centrelink payments.
Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims
The applicant claims to fear persecution in Pakistan from Muttahida Quami Movement (MQM) party activists. His key claims as summarised are:
·In [year] he opened a [shop] named [business name] at [a venue] in Karachi.
·As a shopkeeper he paid extortion money to MQM activists, until he and other shopkeepers stopped giving money in 2008. The activists then hassled and threatened him and stole shop goods.
·On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night the market watchman observed the MQM activists looting and burning market shops including the applicant’s shop. The watchman phoned the applicant to tell what had happened.
·[Later] the applicant filed with the police a written complaint against a named MQM activist. A copy of the complaint has been provided.
·The MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012. Then [in] March 2012 he was abducted and threatened with death.
·[The following day] he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction. A copy of the second complaint has been provided.
·He was worried the MQM activists would become aware of the second complaint so in 2013 and 2014 he stayed for long periods with [relatives] in Sukkur city and Shekarbur city, and while he was away strangers asked after him three times.
·In November 2015 he used a genuine Pakistan passport to travel to [Country 1].
·In February 2016 he used a false identity to travel to Australia.
·Since he departed Pakistan, MQM activists have asked the family where he is and threatened to kill him if he returns to Pakistan. He provided a letter from the parents and a friend to support this claim.
The applicant claims he has a well-founded fear of returning to Pakistan arising from his:
·Political opinion. He fears the MQM party activists will harm him because of his political opinion (actual or imputed) against the MQM party. This arose when he refused to pay money to the party, and he then refused to withdraw a police report he had lodged against the party, and he then lodged a second police report against the party.
·Membership of a particular social group, of Sindhi shopkeepers in Karachi.
·Race. He fears the MQM party, other ethnic groups, and Urdu speakers will harm him because he is of Sindhi ethnicity.
Evidence
The evidence before the Tribunal includes the following material:
·The applicant’s Protection visa application form lodged [in] October 2016, which included a statement dated [in] September 2016 that set out reasons for seeking protection in Australia
·The Protection visa decision record (‘delegate’s decision’) dated [in] June 2017 and notified [several days later], which is the subject of this review
·The application for review, which has attached to it a copy of the delegate’s decision
·A Pakistan National Identity card
·Pakistan First Information Reports (FIR) dated [in] December 2009 and [March] 2012 with English translations
·Submission dated 15 February 2017
·The applicant’s statements dated 14 February, 27 July, 25 August and 11 September 2017
·An undated letter signed by the [family members] and friend
·Country information concerning Pakistan
·Copy of a marketing document for “[the applicant’s business]” with an address and phone number
·Australian Immicard with the applicant’s details
·Certificates attained while detained in Australia
The applicant appeared before the Tribunal to give evidence and present arguments, on 6 September 2017. The hearing was conducted with the assistance of an accredited interpreter in the Urdu and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation.
The applicant listed people he wanted the Tribunal to phone as witnesses: his [family members] and a friend. He indicated these witnesses would give evidence that the MQM were asking about the applicant’s whereabouts and threatening him and the family. But as I pointed out to the applicant, the family members and friend were in Pakistan and I did not propose to call phone numbers in the country of reference, nor could I be sure of the identity of the person phoned. As well, he had already provided a letter signed by the family members and friend that made such claims.
At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations in Urdu. At the end of the hearing when I asked the applicant about his English proficiency he advised that in fact he was fluent in English. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.
The Department attached a notification under s.438(1)(b) of the Act, stating that information had been given in confidence, and that the Tribunal should not disclose it to relevant parties without appropriate consideration. The certificate referred to a document received by the Department via email. I handed the applicant a copy of the certificate. I advised him of my satisfaction that the certificate was validly issued due to the advice that the document had been given in confidence, and the informant had expressed fears of retribution if disclosed, and the document included confidential third party information. I also disclosed to the applicant that the Tribunal held a similar dob-in given in confidence with the same information. The applicant had no comments concerning the certificate’s validity. I discussed key points from the dob-ins. I then went through the s424AA procedure in which I pointed out the information, how it is relevant and the consequences. The information in the dob-in letters is that he had made up claims, they are untrue, and he does not fear the MQM in Pakistan.
The applicant said he wanted to respond orally immediately. He said whoever wrote the dob-ins is jealous of him, there is no proof the informant is telling the truth, the accusations are easy to make, and had only been made a long time after he arrived here.
Country information
I have carefully considered the submissions and country information provided and cited by the applicant.
Assessment of claims: credibility
The applicant claims to be a national of Pakistan. He has not produced a Pakistan passport as material before the Tribunal suggests he entered Australia using a false [Country 1] passport and he claims his genuine Pakistan passport had been taken by a people smuggler in [Country 1]. He produced a copy of a Pakistan National Identity card, and other documents that refer to him that are ostensibly from Pakistan. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the receiving country for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.
Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity: [the applicant] born on [date]. I accept he is a Sunni Muslim and a Sindhi. I accept he was born and raised in Karachi in Sindh province. I accept his parents and siblings are in Karachi and a [relative] in [Country 2].
His claim to be a businessman and shopkeeper
A main element of the applicant’s narrative is his claimed fear of the enmity of MQM party activists. He claims he attracted the activist’s attention when in [year] he opened a big [shop] named [business name] at [a venue] in Karachi. He claims he met their demands for extortion money until 2008 when he refused to pay. He claims that in revenge the activists looted and torched his shop during riots in December 2009, and he never re-opened his shop or business. However, I do not accept that he was ever a businessman and shopkeeper as he claims.
I asked what work his father did and he said his father worked in a [business] and at first said he had never asked what the father actually did there, before responding to my queries to say that the father did office work. Despite ample opportunity he did not claim the father had helped him in any regard in the business other than providing money to set it up.
As I discussed at the hearing he claims to have established [the] business and opened a shop in [year], but I do not consider this believable as in [year] he had only turned age [age] and was finishing [School]. He merely responded that he always wanted to run his own business and to do that he first needed to study. When I asked how he got the expertise to set up and run such a business he stated he had watched other people and the business community helped him. But when I queried over what period he so observed, he vaguely answered that he finished his studies and had a passion to start a business so since then. When I asked why the business community would give such help to him he vaguely responded that of course they would help. His vague explanations that lacked detail were unconvincing.
As well, as I pointed out, in the application he showed he had also undertaken college studies up to 2004 and then studied a [tertiary course] at [a college] in 2005-2006, and any full-time study would not have given him time to operate a shop. He responded that he studied at home and did exams privately, although he also described long days in the shop working into the early evening. His explanation for how he managed to establish a business and operate a shop while at the same time undertaking college study including a degree course up to 2006 is unpersuasive.
At the end of the hearing I indicated I continued to have concerns as to whether he had ever been a shop owner. But when I suggested documentary evidence he could provide to support his claim, his quick dismissal of any possibility of getting documents contemporaneous with his claimed period of business operation raised concerns. He at first said everything concerning the business had burned in the shop fire. When I queried that every document that showed he ran a business for eight years had been in the shop and burned, he responded that this was because the tax officers would come to the shop. When I queried whether he could produce official tax records that showed he was the owner he responded that he could not because the tax officers just took the money/bribes and went. However, I disbelieve that no tax records for such a business were kept other than in writing in the shop or that such records cannot be accessed now. Further, his evidence that he had no photos that showed the shop and him at the shop, is difficult to accept in light of his narrative that establishing the business and shop fulfilled a significant passion he had.
He then said he had a business card and when I asked whether it showed that he or his father was the owner he stated the card had the shop name and his name and mobile number. However, the card he provided after the hearing does not show the applicant’s name and merely shows ‘[business name, with specified products]’ with an address and a mobile phone number. As I pointed out at the hearing, country information[2] shows that document fraud is endemic in Pakistan. Regardless, even if the card is accepted as genuine, beyond having his family name it does not contain the applicant’s full name and I am not satisfied this card concerns a business owned and operated by him from [year] to 2009.
[2] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, at 5.43 [>
Having considered the applicant’s evidence and documentary evidence I disbelieve that [at his age] completing [his study], and with no business experience or expertise in wholesaling or shop operation or in [his product line], he established a [business] and opened a shop in a Karachi market. I disbelieve that over the next several years he was able to operate the business as sole owner while at times also completing courses including [a tertiary course]. It may be that there is a [shop] operated by a family member in Karachi but I do not accept that the applicant was the shopkeeper and owner of the business. I find that the applicant is not a credible witness and has fabricated his claims and narrative about the business and shop operated by him and the related adverse interest of MQM activists.
The adverse interest of the MQM activists
In light of the foregoing findings I reject the applicant’s claims that flow from his claimed ownership of the business and shop. As I do not accept he was a shopkeeper in a market I do not accept that: he came to the attention of MQM activists who extorted money from him; activists hassled him and stole from a shop he operated; activists torched a shop he operated; he lodged a complaint with the police; activists then assaulted, threatened and abducted him; he lodged a second complaint; thereafter activists searched for him, threatened the family and continue to have an adverse interest in him.
Nevertheless, other concerns I have with the applicant’s narrative and evidence reinforce my findings that he is not a credible witness and has fabricated his claims and narrative about his experiences in Pakistan. In the applicant’s narrative after a Shia Ashura Day parade was suicide bombed in Karachi, MQM activists looted and torched shops in the market including his shop in retribution for the shopkeepers refusing to pay extortion money. He produced an article by Dr Shahid Qureshi that suggested MQM had been responsible for all of the events. However, as I said at the hearing, much of that article is odd and I do not consider the information and speculation to be credible. This is because the article sets out numerous conspiracy theories including: implicating Blackwater/Xe and India; referring to MQM and Blackwater/Xe as US sponsored mafia style mercenary outfits; speculation it may have been a dry run by foreign sponsored elements to separate Karachi from Pakistan; the City Government/MQM leader blamed the bombing on the Taliban but how did he know it was not the Indian RAW (Indian foreign intelligence agency) or Blackwater/Xe. As I pointed out to the applicant other country information[3] discussed how the Ashura Day bombing sparked riots in which largely unidentified rioters torched shops and cars including thousands of shops and warehouses in Central Karachi. As well, a later BBC report discussed the Taliban taking responsibility for the bombing. The applicant responded that we cannot know who was actually responsible as the Taliban always claim responsibility for attacks, and the MQM and other organisations used the riots to take revenge. However, I give greater weight to the reports from more mainstream sources that ostensibly show the Taliban had been responsible for the bombing, and that showed the subsequent riots got out of hand and rioters torched the markets starting uncontrollable fires that destroyed thousands of businesses.
[3] The Scotsman article, 30 killed in suicide bombing, 28 December 2009, [ Dawn article, Suicide attack on Ashura procession kills 33 in Karachi, 29 December 2009, [ BBC article, Taliban claim bombing in Karachi, 30 December 2009, [ [further source deleted.];
Additionally, I consider that in the applicant’s narrative, elements of his response to the occurrence were not convincing. Firstly, he claims the market watchman phoned him at 5am to tell him MQM activists had looted and torched his shop. But as I explored this significant claim he said he had not ask whether the watchman phoned other shopkeepers, and had never asked other shopkeepers whether the watchman had similarly phoned them about MQM activists torching shops. When I queried why he had not asked, he responded that he was too traumatised. However, as I pointed out in his narrative he was later able to go to the police to make a formal complaint. As well, he also claims that after the fire he was told by some shopkeepers that they would lodge complaints with the police and so in his narrative he had ample opportunity to tell them about the watchman’s phone call. In light of the significance of the watchman being an eye witness to the market arson and then actually phoning the applicant to tell him at the time of the fire, it is difficult to accept that he failed to discuss this serious matter with any other shopkeepers whose shops were similarly destroyed.
Secondly, in his written complaint he merely stated that the market watchman (a ‘chowkidar’) had been an eye witness to the arson. When I queried why he failed to get a written statement from the watchman as evidence he responded that this would have got the watchman killed. But as I pointed out his complaint mentioned the watchman and so the watchman had already been identified as an eye witness. The applicant responded that he had not named the watchman. But as I pointed out, by making a complaint he would have intended for the police to investigate the matter including questioning the particular watchman. Then later in the hearing the applicant speculated that maybe the watchman had been killed too and when I queried that he did not know he explained that afterwards he had no contact with the watchman at all. However, as the watchman would have been a significant and credible eye witness it is difficult to accept that the applicant made scant endeavours to contact or ascertain the watchman’s wellbeing, and made no endeavours to get from the watchman something in writing that he could then have used to strongly evidence his complaint.
Thirdly, in his narrative after the fire he had briefly spoken to some shopkeepers but then stopped going to the market and had not spoken to any of the other shopkeepers since that time. But as I pointed out, he would have had a strong interest in what other shopkeepers had done in response to the arson in the following weeks, whether shopkeepers had complained about MQM involvement, and what had subsequently happened. The applicant merely responded by asking why would he speak to anyone as they could only give moral support, and the police would take time to investigate and anyway the police never arrest anyone. However, country information[4] shows that the market fires had been a major event in Karachi that affected thousands of businessmen and led to criminal investigations, and in the applicant’s narrative he had made a written complaint to the police that he expected to be investigated. In this light it is difficult to accept that he made no endeavours to keep in touch with other shopkeepers to see whether they had any insights or outcomes. In sum, the applicant’s evidence about his scant actions following the claimed torching of a shop he operated was unconvincing and reinforces my findings that he has fabricated his claims and narrative and is not a credible witness.
The written complaints to the police
[4] ibid
In the applicant’s narrative, [in] December 2009 he filed with the police a written complaint (called a First Information Report or FIR) against a named MQM activist. Subsequently, the MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012, and then [in] March 2012 he was abducted and threatened with death. [In] March 2012 he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction.
He provided copies and translations of both complaints and I have carefully considered the complaints in the light of country information[5] that document fraud is endemic in Pakistan. Indeed, as I pointed out at the hearing, DFAT advise:
5.43 Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. It is relatively simple to produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
The applicant responded that the Department who had expertise with documents accepted them. But as I then pointed out, the Department did not examine the documents through its Documents Examination Unit, and regardless the Tribunal is not bound by previous findings of the delegate.
[5] The September 2017 DFAT report on Pakistan
The applicant has given an account of increasingly violent interactions with the MQM activists finally leading to abduction with a violent assault and being threatened with death while two guns were placed to his head. At the hearing he agreed this had caused him great fear. In light of this it is difficult to accept his story that he went to the police and withdrew the written complaint dated [in] December 2009 but then immediately made another written complaint about the abduction by MQM activists whom he named and in which he fully explained why he was withdrawing the first complaint. The applicant responded to my concerns by saying that if he was later killed there was evidence of who had killed him, and his parents pressured him to make the second complaint. But as I pointed out it makes no sense for him to have made a second complaint so that it would be known who had killed him, if the making of the second complaint was the very action that would lead the activists to kill him. As I pointed out it is not likely that his parents would pressure him to do an act that would likely attract the adverse interest of the activists and lead to their son’s murder. In sum I find improbable the applicant’s narrative and evidence about withdrawing the first complaint because of a great fear of being murdered, but then lodging an even more detailed written complaint against the activists. My great concerns with the applicant’s narrative and evidence, together with my findings that he is not a credible witness and has fabricated claims, and the country information about false and fraudulent FIRs from Pakistan, lead me to find the FIRs are fraudulent and I give the documents no weight.
Additionally, I find unconvincing his evidence that having complied with the activists’ demands and having withdrawn the complaint, he nonetheless then made no efforts at all to advise them of this. When I discussed my concerns, the applicant responded that it was not that easy to walk in and tell the MQM these things. But as I pointed out he said he knew them and the MQM had offices, and indeed he says people the family suspected to be MQM activists had come to his house afterwards and so a family member could have told them the complaint had been withdrawn. He then responded that they had never asked the family and neither he nor a family member had ever told them. However, as I pointed out someone in his situation would have made every effort to ensure the activists became aware their demands had been met. In sum, I find unconvincing the applicant’s claimed lack of any endeavours to inform the MQM activists.
The more than three years before he departs
In the applicant’s narrative he withdrew the first written complaint and then made a second complaint with the police [in] March 2012, and finally departed Pakistan in November 2015. He claims that in 2013 and 2014 he stayed for long periods with [relatives] in Sukkur city and Shekarbur city, and while he was away from home strangers asked after him three times. But his evidence is also that when he was living in the family home including in 2015 no-one had ever visited the family home and asked after him. As I pointed out, after the claimed occurrences in early 2012 he had therefore resided in Pakistan for [over] three years without anything happening to him. He responded by repeating his claims that he had stayed for long periods with the [relatives] and strangers had asked the family where he was on three occasions. Nonetheless, in his narrative over a long period of several years the activists made no particular threats and nothing happened to the applicant, and this was despite him living in the family home for a significant period up to the time he says he departed. In sum, the applicant’s account of living in Pakistan for almost four years after the occurrences in early 2012 without incident and harm do not support his claims of having gained the sustained adverse interest and enmity of MQM activists, and do not support his story of fleeing Pakistan as a result.
The activists’ adverse interest after he departs
The applicant made a new claim to the Tribunal by providing a letter from the family and a friend addressed to the Tribunal that stated in the past two years on several occasions when out in public the “Mohajir’s community MQM” stopped them and without giving reasons enquired about the applicant and threatened to harm them if he was not found. But as I pointed out, it is not believable that while he was in Pakistan from [March] 2012 to November 2015 nothing bad happened to him and only after he was in Australia several years later did the activists then intensify their search for him and start making death threats.
As well, as I discussed at the hearing, the September 2017 DFAT report indicated that in Karachi the federal para-military Rangers deployed there since 2013 had heavily targeted the MQM.[6] The crackdown on political and criminal violence in Karachi, with thousands of arrests, detentions and deaths of criminals had significantly disrupted the MQM’s criminal activities, and violence by groups linked to political parties had significantly reduced. As I pointed out, in light of the Rangers’ sustained focus on political parties and crime in Karachi over a number of years including before and after the applicant departed Pakistan, the activists would have had bigger problems than the applicant and his claimed complaints that were by then years in the past. The applicant responded that there have still been bomb blasts in Pakistan as reports he provided showed, while the Rangers have made arrests maybe they will go away, and maybe the activists after him had not been arrested. Nonetheless, my point was that the Rangers have been in Karachi targeting and disrupting political crime throughout the period the applicant claims the activists’ interest in him has increased. In sum, the applicant’s claim that the MQM’s interest in him increased and intensified as the years go by is not believable. I give greater weight to my concerns with the applicant’s narrative and evidence than I do to the letter sent by family for the purposes of supporting the applicant’s Tribunal matter.
Conclusion - credibility
[6] At 2.38, 3.48, 3.99, 3.101, 3.105, 5.6
My great concerns with significant elements of the applicant’s narrative and evidence lead me to find he is not a credible witness. I find that he has fabricated the story about owning and operating a shop in a market in Karachi, and coming to the adverse attention of the MQM and its activists. I do not accept that the MQM activists have in the past or now, any interest in him for the reasons he claims.
The dob-ins received by the Department and Tribunal ostensibly reinforce my findings that the applicant has fabricated his story. However, I note the dob-ins do not provide particular evidence of fabrication beyond making the claim that the applicant’s story is false and I have not been able to question the writer, and I have given the dob-ins no weight.
Having considered the claims and evidence, I accept his claims that:
·He is a mature, unmarried Sindhi man who is a Sunni Muslim.
·On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night there were fires in markets.
·In November 2015 he used a genuine Pakistan passport to travel to [Country 1].
·In February 2016 he used a false identity to travel to Australia.
Having considered the claims and evidence, I do not accept his claims that:
·In [year] he opened a [shop] named [business name] at [a venue] in Karachi.
·As a shopkeeper he paid extortion money to MQM activists, until he and other shopkeepers stopped giving money in 2008. The activists then hassled and threatened him and stole shop goods.
·On 28 December 2009 a Shia Ashura Day procession was suicide bombed in Karachi and that night the market watchman observed the MQM activists looting and burning market shops including the applicant’s shop. The watchman phoned the applicant to tell what had happened.
·[In] December 2009 the applicant filed with the police a written complaint against a named MQM activist.
·The MQM activists became aware of the written complaint and demanded he withdraw it when they assaulted him two times in early 2012. Then [in] March 2012 he was abducted and threatened with death.
·[In] March 2012 he went to the police and withdrew the complaint, but then also lodged a fresh written complaint about the abduction.
·He was worried the MQM activists would become aware of the second complaint so in 2013 and 2014 he stayed for long periods with [relatives] in Sukkur city and Shekarbur city, and while he was away strangers asked after him three times.
·Since he departed Pakistan, MQM activists have asked the family where he is and threatened to kill him if he returns to Pakistan. A letter from the parents and a friend supports this claim.
Conclusion
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature, unmarried Sindhi man who is a Sunni Muslim. He comes from a moderately well-off family and his parents and siblings continue to reside in the family home in Karachi. He is well educated and has attained a [tertiary qualification]. As I pointed out at the hearing, he does not claim to have undertaken political activities or joined a political party in Pakistan. I find that he arrived in Australia [in] February 2016 and he has now been here for almost two years.
As I discussed at the hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport. He claims he no longer has the passport and has not sought to get a new passport. But he is a Pakistan national and so will have no great difficulties getting a travel document to return to and enter Pakistan. Nor will he have any difficulties travelling to Karachi which is the largest city in Pakistan. As I discussed at the hearing, he departed Pakistan legally on his valid Pakistan passport and although he had been detained and sought refugee status here, country information[7] does not show that the way he departed Pakistan or anything he had done in Australia including his status as a failed asylum seeker would cause him to face harm on his return to Pakistan. As I said, he had not breached any Pakistani laws. Also as I discussed at the hearing, country information does not show he will face harm on returning to Pakistan because of his long residence outside of Pakistan and in Australia. My discussion drew on the September 2017 DFAT report:
3.139 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.
3.140 DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
[7] September 2017 DFAT report, 5.19 to 5.21
The applicant’s narrative and claimed fear of harm in Karachi and Pakistan is centred on two main elements, one of which is his claimed fear of the enmity of MQM party activists. However, in light of my foregoing credibility discussion my great concerns with significant elements of the applicant’s narrative and evidence lead me to find he has fabricated significant claims and that he is not a credible witness. I do not accept the applicant was ever a shopkeeper with his own shop, or that as a shopkeeper or Sindhi shopkeeper had been pressured to pay and then stopped paying extortion money to the MQM party activists, or that a shop he owned had been torched during rioting in Karachi city in December 2009. I do not accept that he made complaints against MQM activists, or that they harmed, abducted and threatened him with death. I do not accept that MQM activists ever had any adverse interest in him or that they have continued to search for him and have threatened his family.
The applicant also claims that he faces harm for reason of his membership of a particular social group of Sindhi shopkeepers in Karachi. However, at the hearing I pointed out that he does not own a shop now and so he is not in a particular social group of Sindhi shopkeepers. He responded what if he operated another shop. But as I pointed out, even in his narrative he had not operated a shop since 2009 despite living in Pakistan until late 2015 and so I did not consider it likely that he would decide to open a shop on his return. In sum, I do not accept the applicant ever owned a shop in Karachi and do not accept he will be motivated to operate a shop in Pakistan in the reasonably foreseeable future. I do not accept he faces persecution in Karachi Pakistan for reason of membership of a particular social group of Sindhi shopkeepers in Karachi.
The second main element of the applicant’s claims concerns his Sindhi ethnicity and his fear of persecution at the hands of other ethnic groups and Urdu speakers that include the Mohajir. At the hearing I acknowledged that ethnicity has been a source of communal tension throughout Pakistan’s history[8] and as discussed in country information provided by him and his representative, but I pointed out the September 2017 DFAT report states that violence in Karachi had fallen in recent years:
3.48 Karachi has historically experienced high levels of violence because of rival ethnic, sectarian, political, business and criminal interests. However, violence, including sectarian violence, has fallen significantly in recent years, including because of the NAP and highly visible presence of the federal paramilitary police force, the Rangers. According to the Center for Research and Security Studies (CRSS), the number of fatalities from sectarian violence (involving Sunnis, Shi’a, Ahmadis and other groups) in Karachi fell from 216 deaths in 2014 to 38 deaths in 2016. Only two deaths were attributed to sectarian-related violence in the rest of Sindh province in 2016, compared with 92 deaths in 2015. However, a sectarian attack killed more than 80 people in rural Sindh in February 2017. This attack targeted Sufi worshippers.
3.50 Overall, DFAT assesses that there currently is a low level of sectarian-motivated violence in Karachi within a context of a moderate level of overall violence, particularly once the size of the city population is taken into account. It is not yet clear whether the efforts of governments and security forces in recent years to reduce the incidence of violence in Karachi will be sustainable.
[8] The September 2017 DFAT report at 3.2, and the reports the applicant provided
I acknowledge DFAT’s comment that “It is not yet clear whether the efforts of governments and security forces in recent years to reduce the incidence of violence in Karachi will be sustainable”. Nonetheless, as discussed at the hearing, country information shows that while the severity of terrorist attacks had increased in 2017, the government and military responded by announcing in February 2017 the Operation Radd-ul-Fasaad. This Operation is the successor to Operation Zarb-e-Azb and is a nation-wide anti-terrorism operation in accordance with the National Action Plan. I consider that the nation-wide anti-terrorism and anti-crime operations conducted since 2014 and still continuing show the military and government remain committed to fighting terrorism and crime across the country including Karachi into the reasonably foreseeable future.
Apart from the applicant’s claim that he was in part targeted for extortion by the MQM activists because he was a Sindhi- and I do not accept he was ever targeted or harmed by MQM activists- he has not claimed that he suffered harm in the past because of his Sindhi ethnicity. His evidence is that he had not been involved in Sindhi politics or organisations. He claims that other family members had been targeted because of their Singhi ethnicity. He claims that years ago a [family member] had been murdered by a Muhajir/Urdu speaker because he was a Sindhi, but as I pointed out in his statement of [September] 2016 he said [that relative] had been attacked by someone who was mentally ill. The applicant claims that when he was age [age] his father was once attacked and so eventually moved the family to the current family home, but as I pointed out that shows the father moved to that current home area for greater safety. The family continue to live there and the applicant described the neighbourhood as having Sindhis in a mix of Punjabis and Pashtuns. As well, as I pointed out, DFAT’s overall assessment is that in Karachi there is a low level of sectarian-motivated violence within a context of a moderate level of overall violence. It is clear that people living in Karachi need to exercise caution in relation to their personal safety. However, as I pointed out, country information- including the authoritative DFAT report and articles provided by the applicant- does not show Sindhis face persecution there or that there is a situation of generalised violence in Karachi Pakistan such that residents cannot live there safely. After considering the evidence and material before the Tribunal, I do not accept that in Karachi there is a real chance the applicant will face serious harm amounting to persecution for reason of his Sindhi ethnicity or from generalised violence.
Additionally, a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country (s.5J). As I discussed at the hearing, the applicant claims that he stayed for long periods with [relatives] in Sukkur city and Shekarbur city, and Sukkur city is about 350 kilometres from Karachi, and his evidence is that he lived there for safety and had not been approached by MQM activists there, and so that was a place he could relocate to. The applicant responded that in Sukkur he had not left the [relative’s] house. However, I do not accept the applicant was in hiding in Sukkur as I reject his narrative about having the adverse attention of MQM activists. Despite ample opportunity, he did not make any other claims about facing harm in Sukkur for any other reason. I find that if he returns to Sukkur where he says he once lived he will not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future for one or more of the five reasons set out in s.5J(1) of the Act, either when looked at individually or cumulatively.
When I consider the material before the Tribunal, all of the applicant’s personal circumstances and all of my findings about his narrative and evidence together, I find unconvincing and do not accept his claims that in Pakistan he faces harm from the MQM and party activists, or from other ethnic groups and Urdu speakers that include the Mohajir, or from any other agents. I find there is not a situation of generalised violence in Karachi or Sukkur. I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in the home area in Karachi, or in Sukkur, for any reason including that he would be a failed asylum seeker and returnee from Australia, or for the reasons he has claimed of:
·Political opinion. He fears the MQM party activists will harm him because of his political opinion (actual or imputed) against the MQM party.
·Membership of a particular social group, of Sindhi shopkeepers in Karachi.
·Race. He fears the MQM party, other ethnic groups, and Urdu speakers will harm him because he is of Sindhi ethnicity.
I find that if he returns to the home area in Karachi, or to Sukkur, he will not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future for one or more of the five reasons set out in s.5J(1) of the Act, either when looked at individually or cumulatively.
Refugee criterion
In light of the above assessment, the Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
In light of the foregoing, I do not accept that in Karachi or Sukkur the applicant faces a real risk of significant harm for any reason, including because of generalised violence or his profile as a failed asylum seeker and returnee from Australia, from the MQM and party activists, or from other ethnic groups and Urdu speakers that include the Mohajir, or from any other agents.
I accept the applicant may face dislocation when he returns to Pakistan, as he has not been there since, he says, November 2015. But in light of the foregoing I consider the applicant will be able to return to his family and family home in Karachi without difficulties and make his way in life from the time he arrives.
As well, I also considered whether it would be reasonable for him to live in Sukkur. As discussed above, his evidence is that he travelled there without difficulties to live with [his relative] for a long period. He ostensibly has family support available in Sukkur and he knows the place. He is a mature man who has acted independently in making his way to [Country 1] and then to Australia. He is well-educated and has some employment experience in Pakistan. He speaks Urdu and English fluently and can speak Sindhi and Punjabi, so has good language skills that will be of great benefit in getting work. I consider it would be reasonable for him to relocate to Sukkur.
In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant faces a real risk of significant harm for any reason if he is removed/returns to Pakistan.
Overall Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
C. Packer
MemberATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
Refugee
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations 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 themself 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.
Complementary protection
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
0
0
0