1720939 (Refugee)

[2021] AATA 3098

1720939 (Refugee) [2021] AATA 3098 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720939

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Justin Meyer

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 2 August 2021 at 5:15pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – family member of senior government worker – threats to father from extremist and criminal groups – attacks, kidnaps or attempts on father, brother and applicant – religion – Sunni Muslim married Shia woman without families’ consent – wife killed and applicant injured in attack by unknown persons – country information – relocation not feasible and limited state protection available – claim on ground of mixed marriage not made out – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36(2), 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

1. 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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 3 October 2014 and the delegate refused to grant the visa on 24 August 2017.

3. The applicant appeared before the Tribunal on 24 April 2021 and 28 June 2021 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issues in this review are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

11. For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration.

    Identity

12. The applicant's identity is established as a [Age]-year-old male, as evidenced by a Pakistani passport. There is passport evidence before the Department and the Tribunal confirming his identity and nationality.

13. The applicant, who claimed to be a citizen of Pakistan, applied for the visa on 1 December 2014 and the delegate refused to grant the visa on 24 August 2017. The delegate refused to grant the visa on the basis that the delegate did not have a genuine subjective fear of being persecuted in Pakistan and did not have a well-founded fear for the purposes of the Refugee Convention. The delegate also was not satisfied the applicant has a real chance of being subject to significant harm should he be returned to Pakistan.

    Claims and evidence

14. In his application to the department, the applicant claims to be a citizen of Pakistan and a Sunni Muslim. He went on to claim as follows:

    ·In 2009, he fell in love with a girl called [Ms A] who was a Shia Muslim. After some time, someone informed [Ms A]’s father about their meetings. She was forbidden by her father to make further contact with him. He was very sad about the breakdown of their relationship.

    ·In 2012 [Ms A] gained admission to [a] School and they started to have contact again. Their love for each other was very strong and they engaged in sexual activity. [Ms A] was very concerned that she had lost her virginity and would not be able to get married. He reassured her that he would marry her after he completed his education.

    ·He came to Australia in June 2012 to study. After he came to Australia, [Ms A]’s father decided that she should marry her cousin. [Ms A] was against the arranged marriage. She contacted him and asked him to marry her. It was a difficult decision for him because his parents were against such a marriage.

    ·His father works for [a Government agency] since [Year]. Because of his work in [the agency], his father has received threats from the Taliban and other criminals. In June 2013 he heard about the threats his father had been receiving from the Taliban. This made him mentally upset. He lost interest in his study and was involved in a car accident that fractured [a part of his body]. Although he wanted to go back home to be with his parents, his parents insisted that he remained in Australia to continue his studies.

    ·He heard from a relative in Peshawar that the Taliban had demanded [Amount] from his father as penalty because his father had collected ‘secret information about their activities’ through his job, and delivered the information to the ‘secret agencies for action against them’ which caused them to suffer ‘huge losses’. After he heard about the threat, he decided to return to Pakistan in February 2014 because he felt that it was the best thing he could do. His parents were annoyed that he had taken such a risk.

    ·When he returned to his village in February 2014, he met up with [Ms A]. She told him that she did not want to marry her cousin. They decided to arrange a court marriage. He found out later that [Ms A]’s father had lodged a police report. He decided to return home because it was safer for them. His parents were not ready to accept them but calmed down when he showed them the court documents. On [date] March 2014, they arranged a proper function to celebrate their marriage. [Ms A]’s father registered a case against him and his father alleging that they kidnapped his daughter and forced her into marriage without her consent. The police visited his house on [date] March 2014. He showed them the court document about the marriage and they left.

    ·On [date] March 2014, he and his wife were returning home from dinner when some unknown people fired at their car. His wife was severely injured and he was unconscious. They were taken to [a hospital]. His wife passed away prior to arriving at the hospital. When he regained consciousness, he was told of his wife’s death and was heartbroken. He registered a police report against unknown assailants. His wife’s parents accused him of killing their daughter but he believed it was her parents who arranged for someone to kill them. There were two occasions when attempts were made to kidnap him but he was able to escape.

    ·He decided to leave Pakistan because he fears harm from the Pashtun community as his marriage was not accepted.

    ·Since returning to Australia, his family has continuously received threats from the Taliban and [Ms A]’s family. He was mentally depressed and upset by the threats and tried to commit suicide [in] May 2014.

    ·In May 2014 his parents decided to leave Pakistan due to the security situation in the country. Unfortunately, their visa was refused. [In] September 2014, some unknown men kidnapped his brother who has since been recovered.

    ·If he is forced to return to Pakistan, he will suffer serious harm. He will be kidnapped or killed by the Taliban. He also fears harm from the Shia community because he married a Shia girl.

15. The timeline provide by the applicant to the Tribunal was as follows:

    ·[In] June 2013, the applicant’s father requested that authorities protect him.

    ·In January 2014, applicant’s father was threatened by members of Tehreek-i-Taliban Pakistan (‘the TTP’) and received a demand to pay [Amount]. The applicant’s father filed a First Information Report (‘FIR’) with the authorities however no action was taken. The applicant is aware that his father made arrangements to pay some of this amount.

    ·[In] February 2014, the applicant returned to Pakistan out of concern as to the safety of his father.

    ·In March 2014, the applicant married [Ms A].

    ·[In] March 2014, the applicant’s family decided to hold a function to commemorate their marriage. Around this time [Ms A]’s father lodged an FIR against the applicant for kidnapping their daughter and forcing her to marry him.

    ·[In] March 2014, the Pakistani police visited to question the applicant and they departed once he showed their marriage certificate.

    ·[In] March 2014, [Ms A] was killed and the applicant was badly injured in an attack on their vehicle in Pakistan. The applicant continues to suffer issues in his [body] from this attack which requires ongoing physical therapy.

    ·On [date] March 2014, the applicant fled to Australia on his Student visa.

    ·The applicant attempted suicide [and] he was hospitalised in Australia.

    ·[In] September 2014, the applicant’s brother, [Mr B], was kidnapped in Pakistan.

    ·[In] October 2014, the applicant lodged the Protection visa application, following the continued threats to his family and once he was in a mental position to lodge the application.

    ·[In] February 2019, [Mr B] was targeted again while in public by two persons holding pistols who began beating him. He lodged an FIR with the authorities however no further investigations were explored.

    ·[In] August 2020, the applicant’s father was ambushed by assailants who opened fire on his care. [His father] lodged an FIR with the authorities, however no further investigations were undertaken.

    ·The applicant is currently engaged to an Australian citizen of [Sunni] background. Both families approve of the match and the applicant’s family have spoken to her over the phone to give their blessing.

    Evaluation

16. The applicant is a close family member of a long-standing anti-corruption official, his father. The Tribunal has examined extensive submission on his father’s employment at the [Government agency]. The Tribunal has independently established from public documents and submitted documents that he held senior roles there an elsewhere. It accepts that he had senior involvement in cases of [details deleted]. It is a reasonable proposition that he has a profile and is a potential target for a variety of criminals and unsavoury individuals with scores to settle. 

17. The applicant told the department that in 2013, his father received some threats and some threat letters from the Taliban, and his father advised him not to come back to visit but the applicant still went back. The main reason why he returned to Pakistan was out of concern for his father’s safety.

18. The applicant explained that one occasion he was going to visit his fiancée [Ms A] - he got on the motorway, and a blue car followed him. The drivers asked him to stop and shouted at him. He suspected they had guns. He went to a police station nearby. He stayed there for half an hour and told the police that someone is following him but he did not see anyone coming so he left.

19. The second incident was when he had a prescription for glasses. He went to a place in the city and saw two people standing there. These two people have followed him from his home He became scared and contacted his father who came and picked him up and took him home

20. After that his brother was kidnapped by Taliban. He was eventually released after two months and a ransom was paid. His father filed an FIR against the Taliban in this regard.

21. His father also tried or applied for an Australian visa, but it was refused.

22. In the departmental interview the applicant was asked these questions and responded as follows:

    Interviewer:  Why do you think the Taliban will kidnap you and ask for ransom?

    -    Because of the nature of my father's job, the current position he is because Taliban suspects him of gathering information and providing it to the government. They have already kidnapped my brother.

    Interviewer:  Do you think the authorities in your home country will be able to protect you?

    -    If they were able to provide me protection I would have been returned and my family would not have been applied to Australian visa.

    Interviewer: Can you live anywhere else.

    -    I cannot live in any other where because of my accent and because of my skin colour I could be easily recognized that I'm Pashtun and belong to Peshawar.

23. The Tribunal questioned the applicant in detail about these claims. His replies were straightforward and broadly consistent with the other accounts he had given orally and in writing. From this unvarnished evidence the Tribunal contemplates that these sorts of dangerous events are a credible scenario, especially in a context of his father’s decades-long employment in senior roles in anti-corruption and similar government agencies. Attempts to intimidate his father are a likely scenario in this type of role. Future attempts and harm are feasible. The applicant’s father is now in a role as [Occupation] but it is by no means certain that the risk has passed or reprisals are unlikely.

24. The Tribunal contemplates country information from the most recent DFAT report on Pakistan.[1]

    [270]  Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217)

    …

    [272]  The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.

    …

    [283] Armed Groups

    While terrorist attacks declined in 2017 and 2018, armed groups remain a threat to Pakistan’s domestic security and Pakistan-based terrorist groups remain a threat to Pakistan's neighbours, particularly India. Armed groups can be generally categorised into four main groups: anti-state militant groups such as the TTP, sectarian militant groups, anti-Indian and Afghan-focused groups, and secular nationalist groups, such as the Baloch militants. However, the variety of forms of extremism in Pakistan feed off each other and the dividing lines between the various groups is often blurred.

    …

    [285]  Hizbul Ahrar (HuA), formed from a split within TTP-Jamaat-ul-Ahrar (TTP-JA) in November 2017, and claimed a large number of attacks in Pakistan and Afghanistan in 2018. HuA targets law enforcement agencies, and attacks have ranged from small scale IED attacks to complex, multiple attacker or successive attacks across multiple locations.

    [1] DFAT Country Information Report Pakistan 20 February 2019

25. The Tribunal considers the applicant’s main risk to be as a family member of an anti-corruption figure, i.e. his father.

26. There is a causal connection between the harm feared and the refugee ground. Terrorist and criminal groups have a motivation to harm him seriously.

27. The Tribunal is satisfied the applicant has a well-founded fear of being persecuted for reasons of his membership of a particular social group, being anti-corruption fighters and officials and their family. He is one of an identifiable group of persons with a social presence in a country, he is set apart from other members of that society, and the group he is a member of is united by a common characteristic, attribute, or activity.

28. The harm he fears is not solely attributable to this refugee reason, but it is sufficiently attributable to this ground.

29. The Tribunal finds that the applicant’s father is still perceived as an anti-corruption figure. He left his [role] the [Government agency] some two to three years ago. The Tribunal finds that the applicant’s brother was kidnapped by person or a group hostile to the applicant’s father’s activities. The Tribunal finds that due to a reasonable and broadly consistent narrative that the applicant’s brother was kidnapped. While precise motives are unknown it is a high prospect that such a group perpetrated the act. The Tribunal also finds that the applicant’s wife was killed in an attack in a vehicle and the applicant was seriously injured. This is also based on his consistent narrative.

30. The Tribunal notes that there is a newspaper report that covers the applicant’s brother’s kidnapping and that the newspaper in question [is] an authentic media outlet.

31. The delegate’s doubts about the authenticity of the news outlet have been resolved by the Tribunal through its independent checking of the newspaper’s online presence and a letter from the newspaper’s management confirming its longstanding operations for the purpose of this review.

    The Tribunal notes the following DFAT information about the prominent group Tehreek-e Taliban Pakistan (TTP) along with terrorist action and violence:

    [266]  The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.

    [267]  Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.

    [268]  Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).

    [269]  The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).

    [270]  Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. [2]

    [2] DFAT Country Information Report Pakistan 20 February 2019

1. The first point to note is that law-enforcement and political personnel face grave risks. Secondly, the heightened threat of a decade ago has scaled back but the threat is still clear and present. I have little reason to believe that the position will change greatly in the foreseeable future for the applicant. I note that the applicant is associated with his father and he is in contact with his family weekly. He claimed in the hearing that person unknown shot at his father recently as he was making his way home from work.

2. The level of state protection is low for the applicant. 

   [5.1]   DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.

   [5.2]  Despite measures introduced to curb violence across the country under the NAP—strengthened powers for military and paramilitary security forces and the establishment of military courts—successful prosecution for politically motivated or sectarian violence is rare. This is due in part to ineffective police investigations, forensics, prosecution and judicial legal understanding, and in part to threats levied against judges, lawyers and witnesses and their families. The measures introduced under the NAP were intended to be temporary, to allow time for reform of the justice system. Significant reforms to the justice system have not yet occurred. [3]

   [3] DFAT Country Information Report Pakistan 20 February 2019

3. I find that there would be tenuous state protection for him. As terrorist and criminal organisations are broadly across the country, I cannot foresee that relocation for him is a feasible option. He also faces religious and ethnic obstacles to being able to subsist in other regions and states, that reinforce the insurmountable obstacles to relocating.

   The applicant’s other claims

4. The Tribunal is unable to reach a conclusion in favour of the applicant in regard to his other claims, especially in relation to his mixed Shia-Sunni marriage claims.

5. The applicant did not know who his assailants were in the car attack where his wife died. He speculated on the motives.

6. I note that no legal barriers prevent marriage between Shia and Sunnis in Pakistan. While marriages do occur, Sunni-Shia marriages are becoming less common in an environment of increasing religiosity. The Tribunal is unable to determine the definite level of religiosity of the sets of parents and their identification and propensity to resort to violence in case their child married outside their sect. This was imponderable to the Tribunal. The wider disapproval in some circles on mixed relationships may well exist for millions of Pakistanis, but the topic being as wide as it is leads to only speculative consequences in a case with this this lower level of detail. I find these claims not made out. I note the documented mental health issues of the applicant and do not positively conclude that he has embellished or set out to deceive the Tribunal.

7. Thus, the Tribunal accepts the applicant’s father received severe threats on his life from the TTP and the applicant thus decided to visit Pakistan because he feared for the safety of his family, and departed Australia on [in] February 2014.

8. The Tribunal accepts the applicant’s family had registered a complaint with police against [deleted] [in] January 2014 because they could not pay the sum demanded. There were two attempts made to attack or kidnap the applicant.  

9. However, the claims on risk due to Sunni-Shia marriage are not made out.

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Justin Meyer
    Member