1716786 (Refugee)

1716786 (Refugee) [2022] AATA 4133 (31 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716786
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:31 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 August 2022 at 10:40am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – membership and activity in political party – bullying, beating, intimidation and shooting attacks – passage of time, reduction in activity and low profile – no activity in Australia – country information – significant reduction in violence from militant groups – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.
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 21 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims, and I accept, to be a citizen of Pakistan, applied for the visa on 15 December 2014. The delegate refused to grant the visa based on considerable credibility concerns. The delegate wrote in the decision that they did not accept any of the applicant’s claims, specifically,
The applicant’s claims are not credible or genuine. The police report is not genuine. The applicant was not shot prior to his first arrival in Australia. There was not an attempted shooting of the applicant during his last visit to Pakistan. The applicant was not an MQM activist. The applicant does not have an ongoing involvement with, or connection to, the MQM.
The applicant was first invited by another member to appear in person before the Tribunal in June 2021 but due to the COVID pandemic it was changed to a video conference appearance. The applicant requested a postponement on the basis that he was unwell and also to allow him to prepare for the hearing. The postponement request was granted. He was invited again to appear by video conference in July of the same year by the same member but again requested a postponement this time due to the challenges of finding a lawyer in the COVID environment. The postponement request was granted. A third invitation by the same member in August of the same year was also requested to be postponed for similar reasons as well as a delay experienced in receiving supporting documentation due to COVID. The postponement request was granted. The applicant was again invited to appear in September of the same year by video conference by the same member. The applicant requested that the hearing be postponed for reasons of the applicant being unable to find a lawyer due to the lockdowns and illness arising from a past wound. The postponement request was granted.
The case was de-constituted from the original member upon that member’s request for reasons not pertaining to the delays.
The case was subsequently constituted to me as a then Senior Member.
At my instruction, Registry invited the applicant to appear at a hearing on 26 April 2022. On 12 April the applicant wrote requesting a rescheduling for several months as he claimed to have tested positive to COVID and was sick and had ongoing challenges with finding a lawyer. I instructed Registry to respond that the request had been rejected. I note that there was a span of 14 days between the date of the request for postponement when the applicant claimed to have tested positive to COVID and the date of the proposed hearing. As the majority of illnesses arising from COVID do not extend to two weeks I chose to proceed with the hearing and make a further assessment on the day.
On 19 April the applicant provided to the Tribunal the hearing response form indicating that he would be attending.
On 23 April an email was received stating the following:
I accepted to attend the hearing on 26/04/2022 but unfortunately on 21/04/2022 I got covid positive and since than my health is very bad and due to that the doctor gave me medical certificate and advised me for complete bed rest. I’m attaching my medical certificate together. I would appreciate if you can reschedule my hearing till I get better.
A medical certificate was attached which indicated that the applicant was unfit to ‘attend work’ from the 22 April through to the 28 April.
On 26 April, the day of the hearing, the following case note was entered into the Tribunal’s case management system by a Tribunal officer:
The applicant's friend called at 8:45am to advise that the applicant is sick and will not be attending the hearing this morning.
I could hear the applicant coughing in the background. I advised the applicant's friend that I could not speak to hear about the case because upon checking she is not a party to the case. She further advised that the applicant was going to the doctor this morning to obtain a medical certificate.
I asked if I could speak to the applicant, who subsequent to the request did speak to me. He advised that he has Covid and has submitted a medical certificate. He said that he is very sick and won't be able to attend this morning's hearing.
I advised that his medical certificate would need to state exactly what his medical condition is, and why it would stop him from attending a video hearing from his home, clearly dated with the date of the hearing.
I told him that I would let the presiding Senior Member know that he would not be attending the hearing.
At my request a new date for the hearing was set for 12 May 2022.
The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments.
I exercised my discretion to hold the hearing by video conference in response to which the applicant had made no objections. The hearing was held during the COVID-19 pandemic. It was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant and the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF Claims and evidence
Evidence and findings of fact
The applicant is a [Age]-year-old Pakistani man from the southern city of Karachi. He described his family as middle class who continue to live in the same place where he grew up. He said that his father was [an Occupation] and that he has four brothers all also in the [Employer]. He chose not to go into the [Employer] [because of a reason]. One brother is married with one child and lives in another part of Karachi.
At the outset the applicant emphasized that it has been quite some time since the events relevant to this review occurred which may hamper his ability to provide evidence and in addition he has attempted to put them aside and move on. I asked that he tell me at any stage through the hearing if he was struggling with recalling the details of events.
The applicant claims that he joined Muttahida Qaumi Movement (MQM) when he was in college at around the age of 16 to 18 years. He said that they needed energetic people who could speak well. In addition, his uncle had encouraged him to join and he believed in their views which he described as supporting Urdu speaking people, helping them get jobs and protecting their rights. He recalled that he wanted to see MQM improve in its visibility, and expand beyond Karachi. He said that his duties included recruiting young students and during elections distributing brochures or accompanying the local leadership to provide security.
Within the organisational structure of MQM, the applicant explained that he was active in [a] sector. The applicant’s mention of sectors as the organisational structure of the MQM aligns with country information which notes that ‘the MQM ran its affairs through 26 sectors and 207 units since its inception in 1984.’[1]
[1] >
The applicant claims that his involvement with MQM extended through his college and bachelor’s studies amounting to several years of his youth which according to his CV covered the periods of [Year 1] to about [Year 2]. He said that during this period he would be involved in fights between political parties. These would involve bullying and beatings but no guns.
He claimed that he had a maternal uncle who held the role of ‘sector-in-charge’ at one stage, though the applicant never held a formal position, but because of his uncle he said that a lot of people knew him.
The applicant claims that he encountered two incidents in the past that have led him to fear harm in the future.
The first was in 2010. He described it as occurring in Landhi where they have a sector office and a HQ of MQM. He said that they used to go there 2-3 times every month. At a nearby roundabout, he said that he felt that people were watching him. He said that he was aware of such things as he had been involved in a lot of fights around this period. He said that he saw three or four men, all dressed in the traditional Shalwar Kameez, who asked him to come over to them. He said that one grabbed him by the head and said, ‘listen to me, you’re gonna die’. He said they referred to him by name and that they knew his college and home address. Another raised his shirt and pulled a gun according to the applicant. He said that when he saw the gun he started running and that they shot a few rounds. One of the rounds hit him in his leg. He said that the white from inside his leg was hanging out and a lot of blood was coming out. He couldn’t recall if they chased him, but he stated that the place was a food market with a lot of people around. He claimed that he had to go to the hospital to have his wound tended to.
The applicant offered to show his wound over the video. I said that it would not be necessary and instead indicated that I may require him to see a doctor who would assess whether any wound he has is consistent with a bullet wound. The applicant did not object.
A report that he submitted as a part of his application included details of this incident. The date of the report is [October] 2010. The report states:
Today I came at Landhi [Neighbourhood], near [Location] at my relative house. Some unknown persons who belong to [Group] they open firing on me with the intention put to death me and in the result I was wounded and they escape from the spot. After that my relative had taken me [Hospital] and now I am under treatment in ICU and at the present, I don't want legal action and after treatment I will contact with Police station for legal action.
The report is in the format of a police investigation prompted by a ‘daily register’. Another document was provided which purported to be a report recording a call from the [Hospital] to the police station detailing the arrival of the applicant with apparent bullet wounds. While the format of the document is not in what would be considered a usual process, namely the submission of a first incident response, which the delegate placed weight on, I note that there would be many variations of types of processes, documents and forms used to investigate incidents throughout Pakistan. As such I place no weight on the apparent unusualness of this document for such an incident.
I asked how he knew that the individuals weren’t criminals who wanted to rob him. He said that he knew that it was targeted as he had in the past experienced similar instances where others would come to him to intimidate him in a similar way but without pulling a gun.
As they knew his address, I asked why he suspected that they didn’t visit his home to kill him, noting that according to his account they chose a crowded place with many witnesses. He said that some did visit his home, but I noted that this incident was in 2011, over a year after the first incident.
The applicant claims that after the incident he never stayed at his house. He said that he would move to his other family members’ houses. On the few occasions that he was home, he said he stayed securely behind locked doors. I note that the date of the incident aligns with the date he put as his end of employment on his CV.
The applicant graduated from his bachelor’s studies in [Year 2] and the incident occurred in October 2010. Between his graduation and the claimed incident, the applicant worked as [an Occupation] for [a] company. During this time, he claimed that he was not involved with MQM during working hours, but he would help them after hours by attending meetings.
Once he travelled to Australia in March 2011, he said that he volunteered for the Australian office of MQM but stopped after one year. He said that the political party is different in Australia. He said that working for the MQM abroad requires maintaining your attendance or helping with functions or protests. For the time that he was active he said that he needed to contribute to activities or alternatively go online on [Social media] to argue with those who commented against them.
The applicant said that his paid employment kept him busy so he couldn’t commit to MQM. He claims that another reason why he didn’t continue his association with the MQM while in Australia was because his parents became sick, and he was mentally disturbed through this period.
The applicant said that he hadn’t received any threatening calls after the first incident, but his father received a threatening call after he had returned to Pakistan [in] October 2011 for a visit. He claims that the callers stated that they knew that his son had returned and that they would take care of the applicant.
The applicant claims that he was the victim of a second incident.
The applicant said that upon his return in 2011, while he was sitting outside of his family’s apartment compound in Karachi, a couple of people drove by on motorbikes. He was outside of the apartment compound walls when he claims that he saw people on motorbikes take out a pistol and start shooting. After the shots were fired, he claimed to have jumped over the fence to seek refuge. He thought that maybe they had been monitoring him.
I shared a Google satellite image of his home and the surrounding streets and asked him to provide a narration of what happened. The applicant provided considerable detail of the circumstances including from which direction the motorcycle travelled and where they shot from. He believes that they were targeting him because he saw them pointing the gun at him.
I asked if he thought it was a coincidence that he happened to be outside when the motorcyclists drove by. He said that he had been outside for 30-40 minutes waiting for a friend to pick him up. He believes that someone must have informed others about his presence or maybe they were already there.
I put to him that there are a lot of young people who work for MQM and that he would have been considered junior. He accepted this.
I put to the applicant that I found it odd that any group would want to expend resources to chase him down considering that he was junior and that there were many other young people involved within MQM. I noted that the first incident was over a year earlier, prior to that he had already reduced his level of involvement with the MQM. In addition, he had completely disappeared from the political scene by travelling to Australia where he stayed for nearly a year. He said that it could be because of his earlier fights and his uncle’s seniority.
The applicant said that he has not undertaken any political activities while in Australia. He said that he cut himself off completely. He said that he was mentally disturbed because of his family circumstances including his father having health issues that he believes arose from what happened to him.
The applicant claims that his father severed ties with the uncle who had been a sector-in-chief for the MQM because of what happened to him.
Looking into the future, if he had to return to Pakistan, the applicant said that he would not re-join MQM. He said that they had spoiled his life and that of his family members. I accept this claim as truthful.

While the applicant did not raise the matter, I note that in August 2021 the applicant had claimed that he had an injury such that he needed mental and physical rest.
Moreover I need mental and physical recovery as I have been hurt badly in a accident as knife goes in my stomach... luckily i had no internal organs damage just skin damages and I got stitches too..as my condition is very very bad mentally n physically my dr ask me.for.complete rest and next week he will check me again as I am.not healing...if u need my initial medicle.reports I can sent you along with pictures of my wound.
I note that it was from a year prior to the hearing, but nevertheless I have given some leeway in my fact finding when considering the veracity of his claims of past incidents and any inability to recall them. Specifically, I note he had identified the time that had passed, his effort to put what had happened behind him and the above noted incident and recovery.
In considering the applicant’s claims of an involvement with MQM during his student years, I find that he provided sufficient detail and that the information provided aligned with that which he gave at interview to the Department such that I accept that the applicant was involved as described above with MQM through to [Year 2]. I also accept that this involvement included bouts of fights and other sorts of clashes with opposing political parties. I accept that when the applicant started to work in [Year 2] his involvement with MQM reduced.
The first incident on which he bases a part of his claim occurred in October 2010. That it occurred when his involvement with MQM was already wanning is not an issue as he may well have had conflicts with individuals who still remembered him and could identify him in a crowded place such as Landhi, even after a year or two. Country information on that period describes a city that had an extremely high incidence of violence.[2] As the applicant has been consistent in his claims, noting that the circumstances are plausible, that he had offered to show his leg as evidence of a wound and that the general insecurity of Karachi at the time would make such an incident unremarkable, I accept that the attack occurred as described.
[2] >
The applicant claimed that a year later after his return from Australia a group of attackers drove by and shot at him while he was in front of his apartment building. Once again, the applicant provided a detailed summation of what happened, it is consistent with the evidence provided to the Department and having occurred during the peak years of insecurity it is plausible that there are gunmen who would do a drive by shooting on a motorbike. The issue, though, is whether the applicant was the target.
In the years preceding the claimed event he was a junior member of the MQM. Other than for the reason of being related to his uncle there is nothing that distinguished the applicant from the many other young men that he described as being involved with the MQM. Yet, the applicant is suggesting that people knew of his return, phoned his father to threaten him, monitored his movements, and then despatched gunmen on motorbikes to kill him. Somehow these gunmen missed, and he was able to jump away.
It could be that he was the target. Alternatively, other explanations include that the building housed others who were of interest and gun shots in front of the building would send a message or maybe one of the compound’s guards who he claims was standing next to him had enemies. The applicant said that he saw them point a gun at him. This is difficult to reconcile with the fact that they missed unless they were not intending to harm him, or they were some distance away in which case the gun may have equally been pointed at the building behind him or the guard.
Despite my serious concerns about the veracity of the applicant’s claims, I give the applicant the benefit of the doubt and accept that these events occurred such that he was the target. Similarly, not having a reason to doubt the applicant’s claims of his father receiving threatening calls and noting that he has maintained this claim across his Departmental interview and in this hearing, I accept that this occurred.
The applicant claimed that he was not only known to the Taliban but on a Taliban list. I do not accept this. The applicant had been involved with the MQM for between five and seven years during which time no incidents involving guns occurred. For the three subsequent years, as the applicant began to reduce his level of involvement following his transition to the workforce, there are no claims of incidents involving gun attacks. Then in October 2010 while in a crowded marketplace the applicant is attacked. This incident by its nature appears opportunistic and the escalation unplanned in that the applicant was known to the attackers but it didn’t occur at his home or some other place where a premeditated murder could be undertaken with minimal or no witnesses and a higher certainty of success. Instead, the incident occurred at a busy marketplace where there were many witnesses, it appears that it spontaneously escalated to the point that the person carrying the gun pulled it out and shot at him while he was running away, again risking and even hitting passers-by.
Similarly, the abject failure of the attackers to physically harm the applicant in a drive by shooting is not indicative of the applicant being on a Taliban list as opposed to arising from some alternative scenario such as local animosity by people who would be known to him and he would be known to them—someone saw him in the locality and took the opportunity to shoot at him.
As is discussed further below, the general security situation during 2010 and 2011 was such that near lawlessness prevailed and as such I find that it is possible that he was targeted by people who would have otherwise fought him with fists but instead on two occasions used guns. But I do not accept that the targeting was for the reasons of being on some list controlled by the Taliban and instead find that the motivation behind the attacks is very localised.
Considerations
I put to the applicant country information about the risk faced by current MQM members noting that he wasn’t one but nevertheless that this information could inform the circumstances he faces:
3.78 DFAT assesses 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.[3]
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ January 2022 at [3.78]
I emphasised the improvement in the security situation due to security operations undertaken since 2013 noting that the assessment is that current members face a low risk of violence. The applicant acknowledged that a lot of things have improved but feels that he is still facing a threat because he experienced two incidents and he doesn’t know if a third will occur. He said that the situation has improved but even so there was a suicide attack on the Chinese embassy recently. Country information indicates that there was an attack in the vicinity of the Confucius Institute in April 2022 killing three Chinese tutors and a Pakistani man.[4] The only reference to an attack on an embassy is from 2018 when attackers killed two policemen guarding the Chinese consulate in Karachi.[5] I accept the applicant’s reference could be to either and as such note both incidents.
[4] Pakistan attack: China condemns killing of tutors in Pakistan blast; Three suicide attackers storm Chinese consulate in Pakistan, insurgent group says >
I put to the applicant that according to 2019 figures, the latest full year available, there was one MQM-P member killed in 2019.[6] Another database, the Pakistan Institute of Peace Studies, similarly reported one MQM-P member killed in political violence in Karachi in 2019. The applicant said that there is a mafia in Karachi and that if someone is killed it is done as if it was an accident, so they don’t report all of the killings.
[6] 'Pakistan - 20200116161857 - Altaf Hussain - MQM-L supporters - MQM-P supporters - Meri Awaz Suno', COISS, Country of Origin Information Services Section (COISS), 28 January 2020, 20200128141702
In considering the applicant’s claims I first turn my mind to the possible threat the applicant faces arising from having been a member of the MQM in the past. Noting that current members are thought to face a low risk of violence, and that he hasn’t been a member in Pakistan since 2010 when he left the country, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his past membership.
The applicant said that those who targeted him were the Taliban. He said that in the past he would have fights with Afghans as they were trying to recruit people for jihad, and he associates his troubles with these fights. He said that he doesn’t believe members of other parties would try to kill him albeit he had some issues with them during his time at college.
I now turn my mind to consider whether the applicant faces harm arising from a specific vendetta that formed during his fights over a decade ago whether with members of the Taliban or other political parties and persisted through 2010 and 2011 and whether it would continue into 2022.
In turning my mind to this question, I first engaged with the general security situation. I presented to the applicant a graph from the Carnegie Endowment for International Peace which consolidates the conflict related fatalities in Pakistan from three different databases. The graph shows a peak in deaths at around 12,000 per year in 2009 when there were conflicts in KP, Balochistan and Karachi. The graph then shows a reduction to about 6,000 per year from 2011 through to 2014 and then dropping to under 1,000 and in the few hundreds by 2019.
I note that a perilous security environment amplifies certain risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security these events are constrained if not eliminated.
I put to the applicant that this indicates that the security forces have improved the situation such that the environment would limit the Taliban or another potential adversary from doing what they did before. He referred to recent suicide bombings saying that it is not safe. He said that once a person is threatened then it can happen again. He said that he felt secure after the first time and yet it happened a second time. He said that the incidents were political and not personal.
I also put to him country information from DFAT that states that the Pakistan Taliban have moved away from targeting civilians.[7] He said that it wouldn’t make him more secure, he said that they are religious fanatics in a bad way, he doesn’t believe that they would let him go and instead there would be news of him dying in a car accident or drowning in the sea even though he had been assassinated.
[7] Department of Foreign Affairs and Trade, ‘DFAT Country Report 2022’ [2.40]
I asked him how they could keep a record of him as a person of interest after ten years. He said that he went back after one year keeping a low profile and yet the second incident still occurred. He said that in the future it can happen again.
During the height of the applicant’s activities with the MQM he was in his early [Decade 1]. Now the applicant is in his mid-[Decade 2]. While it is possible that he would be recognised by an individual or group of individuals who had a vendetta against him, with the passing of time recognition would diminish as would the memory of a low level MQM member who was involved in fist fights during his university years. It is possible that his persecutors have moved on since then or been killed, especially considering the years of army and paramilitary efforts by the government to bring order to Karachi. Even were they still active and specifically active in Karachi, security information portrays an environment of moderate security that would limit the ability of potential persecutors who may remember him from a decade earlier to enact violence of the sort the applicant experienced in the past and fears for the future.
The applicant can only speculate as to why he was targeted in the past. It could be because he had been involved in a fight with someone who sought to have their honour restored by taking action against the applicant, or because of his association with his uncle or just the randomness of being a known MQM member in the wrong place at the wrong time. Accepting any and all of these possibilities and noting the applicant has not made any contributions to MQM in Australia over the past 5 years and does not intend to renew his involvement were he required to return, I find that due to the passage of time and the security situation in Karachi the applicant does not face a real chance of serious harm or a real risk of significant harm was he to return to the city.
The applicant said that his past experiences of discrimination included receiving lower marks in school because of his ethnicity. He said that you see this animosity toward Muhajirs continuing in social media channels. The applicant said that he fears employment discrimination because he is an Urdu speaking Muhajir. He said that he would be asked at interviews if he was a Muhajir. I noted that he had been employed in the past to which he responded that they don’t provide good jobs and that he obtained his jobs through contacts. He said that Punjabi people are against Urdu speakers. I put to him that I hadn’t read any type of discrimination that would amount to serious harm such that, for example, Urdu speakers are attacked for being Muhajir, houses confiscated, or jobs being barred.[8] He responded that the media doesn’t cover incidents as the media belongs to other groups who want to show a happy Pakistan and they don’t want to show the racism he has described.
[8] Searches of Google, CISNET and Refworld
I accept that the applicant may face some ethnic based discrimination in society such that some employers may ask if he is a Muhajir and act in a discriminatory manner or that on social media he may receive abuse for voicing support for the Muhajir cause. But I note that he accessed a job in the past, which although he may believe it is not aligned with what is due to him, he began it even before having graduated suggesting few problems with accessing employment. I find that such discrimination and abuse as he described, and I accept would occur, does not amount to serious or significant harm.
The applicant had submitted a document from the Karachi Development Authority labelled indenture of lease and included the name of his father. I asked at the hearing why he had submitted the document, but the applicant said that he could not remember. The applicant could not remember what land the document refers to and its relevance if any. Without further guidance from the applicant on the substance of this document I place no weight on it.
I asked the applicant if there were any other circumstances in his life that would cause him to fear harm. He said that there were not.
I offered the applicant a break at the end of the hearing to reflect on the evidence and potentially provide further evidence. The applicant chose not to take the proffered break.
The applicant said that he has a girlfriend who he hopes to marry. She is an Australian resident born in [Country]. I asked if he had to return to Pakistan, would she return with him. He said that she would not as she has lived her whole life in Sydney and her lifestyle as an independent woman would not be suited to Pakistan. Noting that the applicant’s girlfriend would not travel back to Pakistan was he required to return I find that there does not arise a further possible avenue of harm due to her presence. To be clear I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his relationship with his girlfriend.
In considering the applicant’s claims cumulatively noting that the persecution from discrimination he fears arises from different sources than the threats to his life, there is little overlap or compounding of risk or harm, nevertheless, when considered as a whole I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am 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.
Denis Dragovic
Deputy President

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.
…

[2022] AATA 4133

31 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Natural Justice