1720890 (Refugee)

1720890 (Refugee) [2019] AATA 5705 (13 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720890
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Roslyn Smidt
DATE:13 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 13 March 2019 at 2:33pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – particular social group – middle management staff of specified company – role in retrenchment of employees – failed asylum seeker – religion – Barelvi – Shia surname – Islamic dress code for women – hijab – race – Muhajir – political opinion – anti-Taliban – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
[The first-named applicant] (applicant A), his wife [the fourth-named applicant] (applicant B) and their two children, who are citizens of Pakistan, applied for the visas on 4 June 2013. The delegate refused to grant the visas on 10 December 2013. This decision was upheld by a differently constituted Tribunal on 15 August 2014. That decision was appealed by the applicants and [in] July 2017 the Federal Court found that the previous Tribunal had failed to give applicant B a fair opportunity to be heard and, as a result applicant A was also denied a fair hearing, in breach of s.425. The decision was remitted for reconsideration.
The applicants appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review by their registered migration agent.
THE 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
Applicant A is a [age]-year-old man of Sunni Islamic faith from Karachi in Pakistan. He belongs to the Barelvi sect and is of Muhajir background. He completed a [qualification] in [year]. From [year] to [year] he worked for a firm of [Industry 1]. From [year] until his departure from Pakistan he worked for [Company 1].
Applicant B is applicant A’s wife. She is [age] years old and also belongs to the Sunni Islamic Barelvi sect, is of Muhajir background and shares her husband surname. She attended university and holds qualifications in [discipline]. She has never worked outside the home.
The applicants’ [age] year old son and [age] year old daughter are included in this application.
The applicants obtained visitor visas on 7 July 2012 and arrived in Australia [in] May 2013.
SUMMARY OF CLAIMS
Applicant A claims that he is at risk of being physically harmed or killed on return to Pakistan mainly because of his role or perceived role supporting the management of [Company 1] (now [changed name to Company 2]) during a prolonged strike by retrenched workers in 2011. He claims that his background as a Muhajir who follows the Barelvi branch of Sunni Islam increases his risk of harm from these people. He also claims that he faces discrimination in areas such as employment because of his Muhajir background and that he is at risk of harm because while he follows Sunni Islam his surname more commonly associated with Shia Muslims.
Applicant A claims that as a result of these issues he is at risk of serious or significant harm for reasons of his Muhajir background (race), his Barelvi religion, his anti-Taliban political opinion or imputed opinion and his membership of the particular social groups of middle management staff of [Company 1], failed asylum seekers from the Barelvi community in Pakistan and people holding views against the Taliban’s religious and political ideologies.
Applicant B claims that she is also at risk of being physically harmed or killed on return to Pakistan by the people targeting applicant A because of his role in supporting the management of [Company 1] following the 2011 dismissals and because of her Shia surname, Muhajir ethnicity and Barelvi religion. Finally, she claims that she would be at risk of harm from extremists if she returned to Pakistan because she does not conform to Islamic norms, in particular with regard to how she dresses.
Applicants A and B claim that their children are also at risk of harm because of applicant A’s work for [Company 1]. It has also been claimed that their son may be at risk of harm because he spoke on [radio] in Australia and that their daughter would suffer because of rules imposed by the Taliban and might be prevented from attending school.
CONSIDERATION OF THE APPLICANTS’ CLAIMS AND EVIDENCE
Claims relating to applicant A’s employment at [Company 1] and involvement in the 2011 dismissals
[Company 1] is a large, privately owned [company] in Karachi. It currently has [number of] employees.[1] According to reports [number of] mostly lower level [Company 1] employees were offered redundancies in December 2010. Only about [a number] took up the offer. The remaining employees were dismissed [in] January 2011 and replaced by contractors. The dismissed employees were reinstated [later in] January 2011 following strong pressure from unions and the local government. However, they were placed in a ‘surplus pool’, with the apparent intention of retrenching them a later date. After a period of relative calm there was a period of renewed strikes, demonstrations and some attacks on company property. The dismissed workers were supported by a number of unions linked with a range of groups including Islamists such as Jamaat-e-Islami and some socialist organisations.
[1] This overview is based on reports and articles provided by the applicants and other reports including [sources deleted].
The extent of the violence in 2011 and the reasons for it are somewhat unclear. Some of the continuing protests and violence appear to have been at least in part a response to blackouts in the city, which the company and the workers accused each other of creating. It appears that there was an attack of some kind on [Company 1] offices following the dismissals [in] January 2011 and that further blockades or attacks occurred in May and June 2011. It appears that the protests and violence related to the 2011 dismissals largely ceased in mid-2011, although a January 2014 article provided by the applicants indicates that a sit-in protest was held at that time. Strikes and protests against [Company 1] for other reasons have also occurred since 2011.
Applicant A told the Department and the previous Tribunal that he was of particular interest to the unionists and other protesters because he of his middle-management position in the company, his involvement or perceived involvement in the planning and implementation of the redundancies and his activities during the strike, including the use of his home as an alternative office when the protests made it impossible to enter the company office. He also claimed that one of the factors involved in the company’s decision to make some workers redundant was discovery of theft of [company asset] by powerful people linked to unions. He said that he was instrumental in uncovering this theft and as a result the unions were angry with him when the workers were dismissed. Finally, he claimed that he had been promoted despite union objections, which also contributed to his problems following the dismissals at [Company 1].
Applicant A also claimed that he was at greater risk of harm than others in a similar position because he is a Muhajir and the retrenched employees were mostly Pashtun. He claimed that some of his colleagues were attacked or held at gunpoint and asked their ethnicity. Some of them were killed. He said that the retrenched workers and the unions were linked to political parties such as the Awami National Party and Jamaat-e-Islami which is connected to the Taliban. He said that he was at risk of harm from these groups.
Applicant A claimed that prior to the reinstatement of workers [in] January 2011 the protesters beat people they thought were behind the decision to retrench workers and he was one of those assaulted. Following that he was confronted by protesters outside his office who threatened to harm him if he continued to support management’s plans. After the workers were reinstated there was a period of calm, but in May 2011 hostilities resumed. He sent his wife and children to live with his mother-in-law in Rawalpindi. Workers and unions blockaded his office and for about 20 days, in June 2011 his home was used as an office and a number of managers worked there. The unions found out about this and threats increased in June or July 2011.
Applicant A stated that in late July 2011 an agreement was reached which was supposed to end the violence. Applicant B and the children returned home. However, the dispute continued and [in] August 2011 there was a major attack on the [Company 1] office. After a standoff of several hours the police came and told the applicant and others that it was safe to leave. As they did so, members of the unions chased them and threw stones at the applicant’s car. He was able to escape after the police fired shots. Following this there were periods of unrest and periods of calm. Union members sometimes made threats against applicant A when he entered or left his office.
In May 2012 applicant A and his family applied for visitor visas to come to Australia to see members of the applicant B’s family. They were granted visas in early July 2012, but did not travel at that time.
Applicant A claimed [in] July 2012 when he was travelling by car with his wife and children they were hit from behind by two men on a motorbike who broke the back window causing minor injuries to his children. The men threatened applicant A in Pashtu. He reported the incident to the police, but received no assistance. Following that incident he restricted his family’s movements and his children no longer attended school regularly.
[In] March 2013, applicant A was in his car with his son and daughter when two men on a motorcycle approached then. They tapped on the window near applicant A’s son, demanded that the window be opened and threatened to kill applicant A’s son. Applicant A drove off and they escaped.
[In] April 2013, applicant B was standing at a street corner with her daughter when a vehicle drove towards them at great speed. Applicant A said that he believed the driver was trying to hit their daughter.
[Later in] April 2013 applicant B was in a car when she was threatened. In her submissions to the Department she said that she was chased by men who wanted to abduct her family. According to the previous Tribunal’s decision, she said that she was in a car when people approached, took out a gun and told her to stop driving, but she sped away from the scene.
Applicant A told the previous Tribunal that he believed that all of these incidents were attempts to harm him and his family by the labour unions and extremist groups connected with them because they perceived him to be one of the people responsible for the retrenchment of the employees.
The previous Tribunal asked applicant A why he had remained in Pakistan until May 2013 given that he had obtained visas for himself and his family in early July 2012. He said that he had been busy with his work and was trying to survive in Karachi for as long as possible because everything he had were there (house, employment and school education). In addition he had hoped that the situation would improve. Applicant B said that the unrest was sporadic and until the incident [in] March 2013 she continued to hope that the situation would improve.
The previous Tribunal asked the applicants why they had not relocated to Rawalpindi where they appeared to be safe. Applicant A said that his family visited Rawalpindi during holidays but they could not remain longer because his mother-in-law shared her home with others. He also said that the people causing the unrest in Karachi were linked with fundamentalist groups who were present all over Pakistan and these groups would pursue them throughout the country. When asked similar questions by the delegate applicant A also indicated that he would have faced problems in Rawalpindi because he was a Barelvi Muslim and had a Shia surname. Applicant B said that she had not returned to Rawalpindi when her family was threatened in 2013 because her mother was living alone and she did not want her mother to be affected by their problems.
The previous Tribunal asked applicant A whether he had looked for other employment after he began to face problems in January 2011. He said that he had been looking for alternative employment prior to January 2011, but had been unable to find anything suitable because of his limited qualifications and because Muhajirs face discrimination. When asked, he indicated that he had only applied for about three or four positions.
In support of his claims applicant A provided a number of reports on [Company 1]’s efforts to dismiss workers in 2011 and the problems that followed and articles on the murder of [Company 1] employees and other problems in 2012 and 2013:
·A newspaper article dated [in] July 2012 (folio 227) which reports that several [Company 1] employees had been murdered, including a [office bearer]. It states that it is difficult to determine whether the motives for these murders were personal or ethnic or part of a campaign against the company. It also reports on attacks on [Company 1] premises, including one in which hostages were taken, but later released when local leaders intervened.
·A newspaper article dated [in] February 2013 which states that a [Company 1 employee] who was also a supporter of a religious organisation had been shot dead in the street.
·Two newspaper articles dated [in] March 2013 which state that [Mr A], a manager at [Company 1] was killed in a mysterious car bomb attack while driving towards his house. According to police [Mr A] was affiliated with the Muttahida Qaumi Movement.
·A newspaper article dated [in] September 2013 which states that a senior employee of [Company 1] was shot dead near his home.
·Newspaper reports dated July 2013 which condemned violence against [Company 1] workers relating to problems with [services], for example some [Company 1] employees were taken hostage when [problems] were not rectified in a timely manner.
The delegate accepted most of applicant A’s claims regarding the problems caused by his employment, but did not accept that his fear of harm on return was well-founded. The previous Tribunal accepted that applicant A had worked for [Company 1] and that some employees of the company had been threatened or harmed, but did not accept that applicant A or any member of his family had been threatened or attacked by anyone because of his work at [Company 1] or that he was of adverse interest to unions, political parties, extremists or anyone else in Pakistan.
Submissions provided on 20 January 2019 repeated the substance of the applicants’ claims.
At the hearing I asked applicant A to explain his role in the planning and implementing of the 2011 redundancies at [Company 1]. He said that the planning was done by senior management and department managers were instructed to nominate a certain number of employees for inclusion in the program. He was told to get rid of 3 or 4 people from his staff of 25. All of the people he nominated refused to go and were dismissed. Other managers played a similar role. Apart from supporting the policies and continuing to work for the company he did not play any other role in planning or implementing the redundancies.
Applicant A said that one of the workers who he nominated for dismissal was involved in the protests. He said that the only times he saw him after the dismissals was when he was protesting outside the office and the last time he saw he was probably in late 2012.
Applicant A said that [in] January 2011 there was an attack on the office where he worked. It was a general attack on the office, but he was one of those attacked. The police came, but the protesters continued to sit outside the office. After that he remained at home until the workers were reinstated [later in] January 2011.
Applicant A said that there were no significant problems [between] January 2011 and May 2011 when the reinstated workers were dismissed again. Throughout May and June 2011 protesters remained outside the [Company 1] offices to prevent people from entering. Management only allowed people who were essential for the day-to-day running of the business to go to the office and these people entered and left with protection from the police. Applicant A sometimes worked at the office during that period and sometimes stayed home. In June management asked him to work at home and a few others also worked there.

I asked applicant A if he had experienced any problems during May and June 2011. He said that protesters who saw him coming and going to the office threatened to harm him if he continued to support management and sometimes they followed him and threw stones. Other people working at the office also experienced these problems. I asked if he had experienced any other problems during that period. He repeated the same claims.
I noted that applicant A had told the previous Tribunal that an agreement had been reached between the parties in dispute [in] July 2011 and asked what this involved. He said that the unions had agreed to end the violence and form a committee to negotiate an end to the dispute. After that there were no problems [until] August 2011 when there was a major attack on the [Company 1] office. He was at the office when this occurred and he was trapped inside until the police came and fired into the air. When he attempted to escape he and a colleague were attacked and his car was also damaged. He went to the hospital for treatment, but did not require hospitalisation. After this incident the office was closed for a few days and management increased security by employing more private security guards and installing barbed wire. Protesters gathered outside from time to time and sometimes threw stones, but they were unable to enter the premises. The dismissed workers were never reinstated.
I asked applicant A how often the workers and their supporters had held protests during the last year he was in Pakistan. He said that they had not protested very often during that time, but they had targeted some [Company 1] employees.
I asked applicant A if he had experienced any problems after the [Company 1] office reopened in August 2011. He spoke about general problems. When asked for details he said that he had been threatened two or three times near his office in 2012. Other employees received similar threats.
I noted that applicant B and her children had gone to stay with her family in Rawalpindi from May to July 2011 which was before they were threatened or attacked and asked why they had gone to Rawalpindi at that time. Applicant A said that they mainly went for a holiday, but he was also concerned about the violence. Applicant B said that they usually stayed with her family for a month at that time of year, but they stayed for two months because their apartment was being used as an office and it was difficult to remain with so many people in the home.
I asked applicant A if there was any other aspect of his employment with [Company 1] which might cause him problems if he returned to Pakistan. He said that the redundancies were the main issue. He added that there had been other issues, but they had been resolved. When asked to clarify he said they related to theft of [company asset]. He said that there had been a link between the unions and the thieves and they had pressured him to leave information about the theft out of his reports. He added that while the issue had been resolved it could resurface in the future.
I asked the applicants to tell me about the attack in July 2012. Applicant A said that they were in their car in the parking lot of a market about 7 pm and were about to park when two men on a motorcycle came behind them. One man got off the bike and hit the back window of the car. They said something in what appeared to be Pashtu then ran away because there were many people in the area.
I asked the applicants why they believed this attack was related to applicant A’s role in the redundancies at his company in 2011. Applicant A said that it was an unusual occurrence and if it had been an attempted robbery the men would have asked for something specific. Applicant B said that the attack was different from general crimes because the attackers came from the back. I observed that they appeared to be guessing about the motivation for the attack. Applicant A said that some of his colleagues had been injured or killed and there was no other reason for these attacks apart from his involvement in the redundancies.
The applicants said that they had not experienced any problems between the July 2012 attack and the incident [in] March 2013. I asked why they thought they were suddenly attacked again in March 2013. Applicant A said that he did not know, but claimed that [Mr A] who was killed [earlier in] March 2013 had been his boss and said that they had always worked closely together. Applicant B said she did not know why they were attacked in March 2013, but people attacked whenever they got the chance.
I asked applicant A for details of [the] March 2013 incident. He said that he was going to a nearby market with his children and when they stopped at traffic lights two people on a motorcycle stopped beside them and knocked on the passenger side window where his son was sitting. They indicated that they wanted him to open the window, but he did not. They then pointed a gun at the window and said something which he did not understand. At that time the lights changed and applicant A sped off. He said that he believed it was a targeted attack related to the redundancies because it was different from a general criminal attack and it occurred shortly after [Mr A] was killed.
I asked applicant B about the incident [in] April 2013. She said that she had dropped her son at a party and she and her daughter were passing the time by walking in the local area when a [vehicle] drove quickly towards her and she had to pull her daughter away. I observed that this could have been an example of bad or careless driving. Applicant B said that nobody would have been driving like that in the area where they were walking and the driver did not attempt to brake when he saw them.
According to the submission provided on 19 January 2019, applicant B was picking up her children from school when three people attacked the car and tried to abduct the family. When asked about this incident at the hearing she said that she was returning home after taking her children to school when a car with three people inside started to follow her. I asked how she knew that they were following her. She said that it was a residential area and the roads were not busy, but the car was travelling close behind her and she sensed that they were not behaving normally. She said that she was driving in a well-off area and the men did not appear to belong. She said that she was scared and did not look at them properly, but also said that they made hand actions indicating that they wanted her to stop. She continued to drive until she reached a busy main road at which point they stopped following her.
Consideration of claims relating to applicant A’s involvement in the 2011 dismissals
It appears that applicant A exaggerated or embellished his account of his role in the implementation of the redundancy program instituted by [Company 1] in January 2011 and the problems he faced in the months following the January dismissals in his submissions to the previous Tribunal. For example, in his submission to the previous Tribunal he indicated that his problems increased when the protestors found out some company managers were working at his home in June 2011, but at the January 2019 hearing there was no suggestion that the protestors were aware that he and others were working at his home. And he indicated to the previous Tribunal that his family had gone to Rawalpindi because of the violence, while according to the evidence at the January 2019 they went primarily for a holiday and because their apartment was crowded because he and others were working there.
That said, Applicant A’s evidence at the hearing on 23 January 2019 regarding his role in the redundancy program and his experiences while working at [Company 1] in 2011 and 2012 was generally plausible and consistent with independent information regarding these events and I accept it as true. Specifically, I accept that as part of his role as a mid-level manager he nominated several employees for redundancy, that he was assaulted during an attack on company premises in January 2011, that he was sometimes threatened and verbally abused by protesting workers and their supporters when entering and leaving the office in 2011 and that the protestors sometimes threw stones. I also accept that he that he and some colleagues worked at his home from a short time because protesters were blocking entry to his office was and that he threatened by protestors near his office on a few occasions after 2011. However, I do not accept that he was of particular or individual interest to the protesting workers or the unions or political parties which supported them at any time. Nor do I accept that he or other members of his family were attacked by unknown men in 2012 or 2013 because of his involvement in the redundancies.
Applicant A did not play a prominent role in instituting or implementing the redundancy program. According to his evidence he was treated in the same manner as other employees during the protests in 2011. His account of events does not suggest that he was singled out or individually targeted by the protesting workers or anyone else for any reason in 2011. There is no suggestion that anyone followed him after he left the office or contacted him at home or abused him at any time or place apart from when he was entering or leaving his office. It is clear from the evidence that any problems or harm he experienced during the protests in 2011 were the result of his presence at or near his office during protests, not his small role in implementing the redundancy program or his ethnicity or his religion.
I found the applicants’ evidence that they and their children were attacked in July 2012 because of applicant A’s involvement in the 2011 dismissals unconvincing. Beyond stating that they were unable to think of any other explanation for the attack and that it was somehow different from ordinary crimes, the applicants failed to provide any reason or evidence for their assertion that it was linked to applicant A’s involvement in the dismissals at [Company 1]. I find the claim that the dismissed workers or their supporters, who had shown no particular interest in applicant A in 2011, would seek him out and attack him and his family nearly a year later far-fetched and implausible. In addition, as pointed out by the previous Tribunal, the applicants had visitor visas for Australia at that time and if they believed that they were being targeted by the dismissed workers and their supporters it is difficult to understand why they did not use these visas to escape from this harm. I do not accept that applicant A and his family were attacked in July 2012 by people who wanted to harm him because of his involvement in the 2011 dismissals at [Company 1].
I have considered the claim that armed men associated with the dismissed workers threatened applicant A and his family [in] March 2013 while they were travelling by car. Once again, even if I accept that they were threatened in the manner claimed, the claim that the attack was linked to applicant A’s employment at [Company 1] is mere speculation. It is not plausible that people associated with the 2011 dismissals would suddenly decide to attack him and his family in 2013. I note that Karachi is known to be a violent city and common crime or road rage could well explain why armed men threatened him while he was driving. I do not accept that this attack was linked to his involvement in the 2011 dismissals at [Company 1].
I have also considered the possibility that these attacks occurred because of applicant A’s employment in a middle management position at [Company 1]. As noted above, the applicants have provided evidence of the murder of a number of [Company 1] employees and attacks on [Company 1] premises in 2012 and 2013 and some of the victims of these crimes appear to have held management positions in the company. However, according to reports other victims held positions such as [Position 1]. The motives for these crimes are unclear. Some articles suggest that they may have been linked to the political or religious affiliations or activities of the individual concerned. It also appears that some of the attacks were linked to dissatisfaction with the services provided by [Company 1]. In my view, the articles provided by the applicants do not suggest that there was a campaign against people in middle management positions at [Company 1]. In these circumstances, even if I accept that the applicants were attacked in the manner claimed, I am not satisfied that these attacks had anything to do with applicant A’s employment.
I found the applicants’ evidence regarding the claimed attacks on applicant B [in] April 2013 vague and unpersuasive.
The [first] April 2013 incident appears to have involved a car driving erratically and too fast for the road conditions, an occurrence which is unfortunately not uncommon anywhere and not necessarily indicative of an intention to cause harm to applicant B and her daughter.
With regard to the [second] April 2013 incident according to applicant B’s submissions prior to the 23 January 2019 hearing, this incident involved an attempt by armed men to kidnap her and her children when she was picking up them up from school. Her evidence at the 23 January 2019 hearing was vague and confused but in essence she said that she had become nervous because when returning home after leaving her children at school she believed she was being followed by men who looked out of place in the local area and were travelling too close behind her.
I believe that the applicants concocted these claims or embellished minor random traffic incidents in order to enhance their claim for protection in Australia. I do not accept that applicant B was threatened or attacked by anyone in April 2013 because of applicant A’s employment at [Company 1] or for any other reason.
Finally, I have noted applicant A’s claim that he has faced problems with the unions at [Company 1] in the past because of his role in identifying [thieves] and that this problem might resurface in future. However, even if I accept this claim at face value he no longer works for [Company 1] and clearly would have no future role in identifying people stealing [company assets] and would therefore not be at risk of harm for this reason on return to Pakistan.
After considering all of the relevant evidence, I am not satisfied that applicant A or any member of his family faces a real chance of suffering serious or significant harm if they return to Pakistan now or within the reasonably foreseeable future for any reason linked to applicant A’s employment with [Company 1] in Pakistan.
Submissions provided on 4 February 2019 repeated the substance of the claims set out above.
Claims and evidence relating to the applicants’ Muhajir background, Barelvi faith, Shia surname and general violence
In his submissions to the Department applicant A said that he believed that he was of interest to groups protesting the 2011 dismissals in part because of his Muhajir background. It was also suggested he would face discrimination because of his ethnicity and he would be at risk of harm in Karachi as a result of ethnic violence in the city.
By way of context, Muhajirs are Urdu-speaking immigrants, many of whom relocated from India at the time of partition and comprise about 7.5 per cent of the population of Pakistan. According to the 2017 census, the ethnic Muhajir Urdu-speaking community forms slightly less than 45 per cent of Karachi's present population of 20 to 24 million people and constitutes the bulk of Karachi's middle class.[2]
[2] <>
It is generally accepted that Karachi is a violent city.[3] This violence is related to crime, politics, ethnicity and religion and frequently involves elements of all of these factors as many political groups are tied to particular ethnic or religious groups and are often involved in criminal acts. Tensions between Muhajirs and Pashtuns have sometimes descended into violence. However this has mostly involved the armed wings of major political parties, including the Muhajir-based Muttahida Qaumi Movement and appears to have had limited impact on ordinary citizens.
[3] DFAT Country Information Report Pakistan 1 September 2017 and 20 February 2019 and; and UK Home Office Country Policy and Information Note Pakistan: Security and humanitarian situation, including fear of militant groups, January 2019
In September 2017 DFAT noted that overall violence in the city has fallen significantly in recent years largely because of a highly visible presence of the federal paramilitary police force and assessed overall risk of violence in Karachi at that time as moderate, particularly once the size of the city population is taken into account. According to sources cited in a UK Home Office report issued in January 2019, this continued to be the situation in 2018. A report issued by DFAT in February 2019 provided a similar overview.
According to DFAT around 75 per cent of Pakistanis are Sunni Muslims and 60 per cent of Sunni Muslims adhere to the Barelvi school. Barelvis are generally less orthodox and conservative in their interpretation of Islam than Deobandis, the other major Sunni school in Pakistan. Members of the latter group are more likely to join militant groups. Many Barelvi Sunnis in Pakistan venerate Sufi saints and shrines, which are common targets for sectarian attacks. The applicants have provided evidence which suggests there has been some conflict between Deobandis and Barelvis. However, the evidence does not suggest that Barelvis are generally at risk of harm because of their faith in Karachi.
The previous Tribunal advised the applicants that while he was aware that violence was a problem in Karachi it mostly involved political parties and associated criminal gangs or rival sectarian groups. He noted that Muhajirs make up a significant proportion of the population of Karachi and that applicant A did not belong to any political groups. He also noted that the majority of Sunni Muslims follow the Barelvi school and that while there had been attacks on some Barelvi shrines, considered in the context of the Barelvi population of Karachi the chance that they would be victims of such an attack were remote. He also noted that while applicant A had a Shia surname, he was not a Shia and did not attend Shia religious celebrations. He observed that it appeared that there was no more than a remote chance that the applicants would experience serious harm because of their Muhajir ethnicity, their Barelvi religion or applicant A’s Shia surname in Karachi.
In response, the applicants said that they feared harm because of applicant A’s employment at [Company 1] and said that they had mentioned the other issues as factors which they believed would exacerbate his risk of harm. They agreed that there was only a remote chance that they would be harmed because they were Barelvi Muslims.
With regard to the more general issue of crime and violence, applicant A said that he had been held up and his mobile phone had been stolen on several occasions, but neither applicant claimed to have experienced serious harm in the past because of their religion or ethnicity or the general violence in Pakistan.
At the hearing on 23 January 2019 the applicants confirmed that they had never belonged to any political party or any other groups or organisations which are involved with political or religious matters. They said that they were not very religious. They sometimes pray, but rarely attend Mosque.
Applicant A confirmed his education and employment history. Applicant B confirmed that she had obtained tertiary qualifications, but had never worked outside the home. She said that she had never felt comfortable about working and after she was married there was no need for her to seek employment.
I asked the applicants about any problems they had faced in Pakistan because of their Muhajir background. Applicant A said that Pashtun-dominated unions within [Company 1] pressured the company not to promote him and other Urdu-speaking people and as a result he did not receive promotions which he deserved and when he was finally promoted this upset the unions. I asked if he had experienced any other problems because of his Muhajir background. He spoke in general terms about discrimination faced by Muhajirs, but said that he had not personally experienced any other problems. Later in the hearing, he said that he feared he would have difficulty finding employment if he returned to Pakistan in part because of his Muhajir background.

I asked the applicants if they had experienced any problems because they are Barelvis. They said that they had not.
I asked applicant A if he had experienced any problems in Pakistan because his surname appeared to be Shia. He said that he had not experienced any problems, but after the 2011 dismissals the unionists would check the identity of people at the [Company 1] office and they would be treated differently according to their background. He said that while this had not happened to him in the past it might in the future. I advised applicant A that according to DFAT Shia in Pakistan face a low risk of sectarian violence and that sectarian violence in Karachi was currently relatively low. He responded that Shias can face discrimination anywhere in Pakistan.
I asked the applicants if they had experienced any other problems in Pakistan. Applicant A spoke about the general violence in Karachi and said that he had been a victim of theft on several occasions. Applicant B said that she had not experienced any problems, but she was often fearful.
Consideration of claims and evidence relating to the applicants’ Muhajir background, Barelvi faith, applicant A’s Shia surname and general violence
As discussed above, I do not accept that applicant A was personally of adverse interest to anyone because of his limited involvement in the 2011 dismissals or any other reason linked to his employment at [Company 1]. It follows that I do not accept that his Muhajir ethnicity or his Barelvi religion or his Shia surname exacerbated these problems or would increase the possibility that he would be harmed for reasons linked to his past employment if he returned to Pakistan.
With regard to the issue of discrimination against Muhajirs, there is nothing in the evidence before me which suggests that applicant A or any member of his family faced serious discrimination or harm prior to their departure from Pakistan because of their ethnicity. Applicant A completed a [number]-year tertiary qualification and was employed in a relatively senior position appropriate to his skills. Applicant B also completed university studies, but chose not to work. According to applicant B’s evidence at the hearing on 23 January 2019 they lived in a wealthy area. I am unaware of any evidence which suggests that Muhajirs in Karachi face serious discrimination in employment or any other aspect of life. In these circumstances I am not satisfied there is a real chance that applicant A or any member of his family would face discrimination amounting to serious or significant harm on return to Pakistan because of their ethnicity.
I have also considered the possibility that the applicants’ might be victims of violence in Karachi because of their Muhajir ethnicity. While it is certainly true that ethnic violence has been a problem in Karachi, it is clear from the evidence that much of this involves people in political parties or other groups competing with each other and that the level of violence has declined significantly in recent years. While it may be that applicant A has been a victim of crime in the past there is no credible evidence before me which suggests that he or any other member of his family has been a victim of ethnic violence in Pakistan because of their Muhajir background. I also note that, according to his statutory declaration dated 11 August 2014 he lived in a [specified] area which was the safest area of the city. In these circumstances I am not satisfied that any of the applicants faces a real chance of experiencing serious harm as a result of ethnic violence against Muhajirs in Pakistan.
After considering all of the relevant evidence I am not satisfied that applicant A or applicant B or their children face a real chance of suffering serious or significant harm for reasons of their Muhajir ethnicity if they return to Pakistan within the reasonably foreseeable future.
With regard to the fact that the applicants follow the Barelvi school of Sunni Islam, the applicants do not claim to have faced problems of any kind prior to their departure from Pakistan because they are Barelvis and confirmed to the previous Tribunal that there was only a remote chance that they would face harm on return to Pakistan for this reason. While I acknowledge that Barelvis have been amongst those who have been victims of sectarian or extremist violence, I am unaware of any evidence which suggests that Barelvis are generally at risk of harm merely because of their religion. On the evidence before me I am not satisfied that the applicants face a real chance of suffering serious or significant harm on return to Pakistan because of their religion.
With regard to the applicants’ Shia surname, there is no suggestion that any of them has experienced any problems in the past because their name. According to DFAT there is a low level of violence against Shias in Pakistan, mostly involving attacking Shia places of worship, public celebrations or prominent individuals. The applicants are not Shias and there is no suggestion that they would participate in Shia religious events. In these circumstances I do not accept that there is a real chance that they would suffer serious harm on return to Pakistan because of their surname.
The applicants’ status as failed asylum seekers of Barelvi religion
It has been submitted that the applicants would be at risk of harm on return to Pakistan because of their membership of the particular social group of Barelvi failed asylum seekers. As discussed above, the applicant confirmed to the previous Tribunal that there was only a remote chance that they would suffer harm on return to Pakistan because of their Barelvi religion and at the hearing on 23 January 2019 confirmed that they had not faced any problems in Pakistan because of their Barelvi religion. The previous Tribunal also advised the applicants of advice from DFAT which indicated that there was no more than a remote chance that they would experience harm in Pakistan because they had lived in Australia and applied unsuccessfully for protection. In essence the applicants said these were factors which would contribute to them being harmed by people targeting applicant A because of his work at [Company 1].
At the hearing on 23 January 2019 I observed that it appeared unlikely that anyone would be aware that they had applied for protection and reminded them of the DFAT advice regarding failed asylum seekers. In response they said that they did not fear harm on return to Pakistan because they had applied for protection in Australia.
I am not convinced that failed asylum seekers of Barelvi religion constitute a particular social group in Pakistan, but in any event on the evidence currently before me I am not satisfied that the applicants face a real chance of experiencing serious or significant harm on return to Pakistan because they are Barelvis who applied unsuccessfully for protection in Australia.
Claims related to anti-Taliban political views
In submissions to the Department and the previous Tribunal the applicants claimed that they would be at risk of harm on return to Pakistan because they would be viewed as opponents of the Taliban and other extremist groups. While most of these submissions were linked to applicant A’s involvement in the 2011 dismissals, it was also submitted that they would be at risk of harm because extremists harass liberal-minded Pakistanis who are perceived to hold Western values or seen to be opposed to the orthodox views held by Islamists.
The previous Tribunal advised the applicants that country information indicated that the prime targets of extremists such as the Taliban were government, those involved in law enforcement and their political rivals and it appeared that there was only a remote risk of them suffering serious harm at the hands of extremists. The applicants did not disagree with this, but said that they would suffer serious harm from the Taliban because of applicant A’s work for [Company 1] and the way in which he was perceived by the labour unions.
At the hearing on 23 January 2019 I noted that applicant A had previously claimed that he would be at risk of harm if he returned to Pakistan because he opposed the Taliban’s extremist religious and political ideologies. I advised him that I accepted that he opposed these views and ideologies, but observed that it was my understanding that many Pakistanis held similar views, including some people in positions of power and that government had taken action against extremist groups involved in violent activities. I observed that he did not appear to have been involved in any anti-Taliban or anti-extremist activities in Pakistan or to have experienced problems with the Taliban or other extremists prior to leaving Pakistan and it was therefore difficult to accept that these views could cause him problems if he returned to Pakistan. He said that everything was related to his work and his support of the privatisation of [Company 1]. He said that extremists support the unions and oppose privatisation as it was against Islam and they would seek to harm him for that reason.
Consideration of claims related to anti-Taliban political views
As discussed above, while I accept that dismissed workers and their supporters shouted threats at applicant A when he came and went from the [Company 1] office in 2011, I do not accept that he was of adverse particular or continuing interest to the Taliban or anyone else for this or any other reason prior to his departure from Pakistan in mid-2013. There is nothing in the evidence currently before me which suggests that any of the applicants would be of adverse interest to the Taliban or any other extremist group if they returned to Pakistan now. I am not satisfied that there is a real chance that any of the applicants would face serious or significant harm on return to Pakistan because they hold or would be perceived to hold anti-Taliban or anti-extremist views or because they belong to a particular social group of people who oppose the Taliban.
Applicant B’s claims relating to her views on Islam and her gender
In a written submission provided following her interview with the delegate applicant B claims for the first time that she would be at risk of harm because she is very social and moderate and does not adhere to Islamic rules, in particular she wore jeans and did not wear hijab. She said that she feared that the extremists who were targeting applicant A would target her for that reason, apparently as part of their campaign against applicant A.
The previous Tribunal advised applicant B of evidence that many women did not wear hijab, although most women drape a scarf about their shoulders in public which can be pulled over the head if needed. According to the evidence while failure to dress appropriately in certain areas or circumstances could result in some harassment, failure to wear hijab was unlikely to cause problems for most women, particularly if they were part of a community which behaved in a similar fashion. Applicant B said that many women dressed as she did in Pakistan, but she and applicant A also stated that there were many extremists in Pakistan and applicant B’s manner of dress could cause problems, particularly in the context of the threats against applicant A because of his work at [Company 1].
At the hearing on 23 January 2019 I noted that applicant B had claimed that she feared harm if she returned to Pakistan because she did not follow Islamic traditions and values, but observed that she did not appear to have experienced problems for that reason in the past. She said that she had not faced any problems in the past because she used to dress appropriately according to the situation. I asked why she would not be able to do this if she returned to Pakistan. She said that after living in Australia she had become more liberal and Westernised and she would not wear a headscarf even in areas where this was appropriate. She also said that after six years in Australia people might think that she was a Christian.
I asked if applicant B would behave differently in any other way after living in Australia. She said that she would not be able to go out because she is fearful. I noted that she had previously stated that she sometimes wore jeans and generally went without a headscarf and that she had spoken about moving freely in her local area, taking her children to and from school and walking in the local area with her daughter and she did not appear to have experienced problems because of this. I observed that it appeared that she could continue to do so if she returned to Pakistan. Applicant B said her fears were related to the problems she and her family had faced because of applicant A’s problems with extremists, not the way in which she dressed.
I reminded applicant B of DFAT’s advice regarding Western influences and observed that middle-class women were not generally at risk of harm because of their gender or because they dressed in a Western fashion. Applicant B said that this applied to upper-class people and added that her sister-in-law had not visited Pakistan for many years because of security concerns.
I advised applicant B that I was aware that women in Pakistan sometimes faced problems because of their gender, particularly if they came from a poorer community. However, it was also my understanding the middle-class women had greater opportunities in areas such as education and employment, and this appeared to be her situation. I also advised her that, according to DFAT, with the exception of people involved in education, there was only a low chance of women in Pakistan being attacked by extremists because of their gender. Applicant B said that her father would not send her to a co-educational school and also said that actors and women who dressed improperly on television had been attacked. I told her that I accepted that this occurred, but the people involved were prominent public figures, which was not her situation.
Consideration of applicant B’s claims
As noted above, applicant B stated at the hearing that her fears related primarily to problems associated with applicant A’s employment at [Company 1] and indicated that she was not fearful of harm because of the manner in which she dressed or intended to dress. Nevertheless, I have considered whether her dress or other aspects of her behaviour would cause her problems if she returned to Pakistan.
It is clear from the evidence that middle-class women living in middle-class communities in large urban areas often dress in a Western fashion and do not face significant problems because of this. Prior to leaving Pakistan applicant B dressed in a Western fashion without experiencing problems. She claims that after spending over five years in Australia she had become more liberal and Westernised and would behave differently on return. However, the only change specifically mentioned was her claim that while in the past she dressed appropriately for the circumstances, she would not wear a headscarf on any occasion if she returned to Pakistan.

100. According to the evidence most Pakistani women, including those who dress in a Western fashion and do not cover their heads do this as a matter of routine and convenience. There is nothing in the evidence which suggests that applicant B has ever been involved in actively promoting women’s rights such that she would insist on going bareheaded or dressed in a manner likely to cause her significant problems in order to make a political statement and I do not accept she would dress in an inappropriate manner or refuse to pull a scarf over her hair if she was in an area where not doing so might result in her being chastised or harassed.
101. After considering all of the relevant evidence, I am not satisfied that applicant A faces a real chance of experiencing serious or significant harm on return to Pakistan because of the way she dresses or for any other reason linked directly or indirectly to her gender.
102. I have also considered the claim that applicant A might be believed to be a Christian because she has spent time in Australia or because of the way she dresses. However, as discussed at the hearing, it is not uncommon for middle-class Pakistanis to dress and behave in a “Western” manner. I am unaware of any evidence which suggests that Pakistani women (or men) would be suspected of converting to Christianity merely because they have spent time in Australia and I do not accept that applicant B faces a real chance of suffering serious or significant harm on return to Pakistan because she would be suspected of converting to Christianity.
Claims relating to the applicants’ children
103. In written submissions to the Tribunal the applicants claimed that their son was at risk of harm on return to Pakistan because he had become a star on [radio] in Australia and also said that they feared their children might be abducted if they returned to their homeland. When asked about these claims at the hearing applicant A said that his son had been on [radio] speaking the Urdu language on one occasion and while it might not be likely that this would cause him problems on return to Pakistan, he could be at risk of abduction. He added that his family had been targeted in the past and said that he would not send his children to school if he returned to Pakistan. I advised the applicants that while I was aware that crime was a problem in Pakistan it was not my understanding that the problems were such that there was a real chance his children would be kidnapped. The applicants said that their children would be under mental stress if they returned to Pakistan because they were not accustomed to living in a situation where there were guards at school and other security issues.
104. In written submissions to the Tribunal the applicant said that their daughter would suffer if she returned to Pakistan because she would not be able to cope with the rules imposed by the Taliban and she might be prevented from attending school. At the hearing I advised the applicants that it was not my understanding that middle-class girls in urban areas such as Karachi were likely to face these problems. Applicant A said while she might not face these problems immediately, she could do so in future.
105. Submissions provided on 4 February 2019 argued that there was a strong likelihood that the applicants children would be kidnapped if they returned to Pakistan and that would face problems attending school.
Consideration of claims relating to the applicants’ children
106. As discussed above, I do not accept that applicant A faces a real chance of suffering serious or significant harm for any reason linked to his employment. It follows that I do not accept that his children face a real chance of experiencing serious harm for this reason.
107. I accept that the applicants’ children might face some relatively minor issues readjusting to life in Pakistan after spending over five years in Australia, but there is nothing in the evidence before me which suggests that they would be kidnapped or denied the right to attend school or experience other serious problems and I am not satisfied that there is a real chance that either of them would experience serious or significant harm for any reason if they return to Pakistan now or in the reasonably foreseeable future.
Claims regarding other difficulties on return
108. The applicants claim they will have nothing if they return to Pakistan because they had abandoned their home and applicant A left his job and would have difficulty finding a job because of his age, Muhajir ethnicity and limited qualifications.
109. I accept that having given up their rented home and applicant A’s employment and spending over five years in Australia they may face some difficulties re-establishing themselves and adjusting to life in Pakistan. However, I do not accept that their Muhajir background would have any impact on their treatment or prospects on return (see also above) and there is no credible evidence before me which suggests that they face a real chance of suffering serious harm for any of the reasons in the Refugees Convention or that there is a real risk that they would suffer significant harm as defined in the Migration Act because of their decision to leave Pakistan or their time in Australia.

CONCLUSIONS
110. After considering the applicants’ claims singly and cumulatively, I am not satisfied that any of them faces a real chance of suffering serious harm amounting to persecution for any of the reasons in the Refugees Convention. Therefore I am not satisfied that any of them has a well-founded fear of persecution in Pakistan now or in the reasonably foreseeable future.
111. After considering the applicants’ claims singly and cumulatively, I am not satisfied that any of them faces a real risk of suffering significant harm on return to Pakistan. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that any of them will suffer significant harm.
112. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.
DECISION
113. The Tribunal affirms the decision not to grant the applicants Protection visas.
Roslyn Smidt
Member

[2019] AATA 5705

13 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction