1723645 (Refugee)

[2021] AATA 4587

1723645 (Refugee) [2021] AATA 4587 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1723645

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE:30 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on  30 August 2021 at 1.18PM

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – family member’s involvement with the Pakistan Peoples’ Party (‘PPP’) – forced to join the All-Pakistan Mohajir Students’ Organisation (APMSO) at university – fear for safety of daughter – credibility concerns – migration history – voluntary return to Karachi on two occasions – delay in seeking protection – effective protection measures – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989)169 CLR 379
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG 310 of 1997
Velauther Selvaduri v MIEA [1994] FCA 1105

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 on 6 September 2017 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 22 June 2015. The delegate refused to grant the visa on the basis that the Application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. The applicant made an application for review of Department’s decision on 2 October 2017.

4. A hearing of the applicant’s review application was scheduled to be heard by the Tribunal on 3 August 2021.

5. The applicant was assisted at the hearing by an interpreter in Urdu and English languages but the applicant was not represented at the hearing by a registered migration agent or legal representative.

   The applicant provided no witnesses for the Tribunal to hear and no written submissions for the Tribunal to consider at the hearing.  

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country Information

13. Based on the applicant’s issued passport, which was provided to the Department of Home Affairs (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act and on the basis of the this information (as provided to the Department) and to the Tribunal at the hearing, the Tribunal accepts the applicant’s identity as is claimed.

    Applicant’s Department file

14. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the Department’s record of decision to the Tribunal with his application for review.

    Background – the Applicant’s migration visa history

15. On 13 November 2008 the applicant was granted a [student] visa and [in] December 2008 the applicant arrived in Australia. [In] May 2010 the applicant departed Australia. [In] January 2011 the applicant arrived in Australia. On 27 April 2011 the applicant was granted a [second student] visa. [In] January 2012 the applicant departed Australia. On 21 October 2013 the applicant’s [third student] visa application was refused. [In] July 2014 the Migration Review Tribunal affirmed the Department’s decision to refuse the applicant’s [student] visa application. On 25 July 2014 the applicant lodged a request for the Minister to intervene and lodged a (MI) request. On 29 May 2015 the MI request was considered by the Minister inadequate to consider. On 22 June 2015 the applicant submitted an application for a Protection visa which refused by the Department and the applicant requested from the Tribunal to review the Department’s decision.

    EVIDENCE AT THE HEARING

    The Applicant’s claim for Protection

16. The Tribunal noted that the applicant made the following written claims in his application for Protection visa:[1]

    [1] Department of Home Affairs File no. [number] see folio document no. [59]

    • He was physically assaulted and mentally tortured by APM. This happened even though he left

    Pakistan. He is under threat of being killed by this criminal minded party.

    • Target killing is very high in Karachi. He was targeted by APM while he was studying at

    university. There were about 50 political party groups at his university, but he did not want to

    join any of them. APM party student gang came after him asking him to join the party. They

    physically assaulted him one day and forcefully put him in their rally. After that, they beat him

    and chased him a couple of times when he was on holidays in Pakistan.

    • APM & MOM are very powerful in Karachi and throughout Pakistan. He has been their target

    since university. They want him to do all their criminal activities and support them in their rallies.

    • He is not that kind of person and always opposed their criminal activities. They have attacked

    him and bashed him in front of his family. They have also threatened his family and followed

    their car. These people are extreme, and they kill people like chickens. They will either not be stopped until he agrees to work for them or get badly bashed or killed.

17. The applicant the Tribunal noted from the notations which appear in the Department’s file was requested by letter to attend a visa protection interview on 5 September 2017 which he did not attend and provided no explanation to the Department.

18. The applicant was asked by the Tribunal whether the claims made by him to the Department required any amendment, change or variation. In response, the applicant told the Tribunal the following:

    §If he was to return to Pakistan in the near future, he will “for certain” “be tortured and killed”.

    §When the applicant and his wife returned to Pakistan [two years ago], he noticed that “people whom he did not recognise” would follow her and this surveillance caused the trip to be “cut short”.

    §He also received “threatening phone calls” on his mobile phone from “unknown numbers”

    §“Target killings are carried out in Pakistan” and the applicant fears that if he returns to Pakistan, he and wife and child will be “targeted”.

    §“Some of my friends who remained have been abducted and have not been seen again.”

    §He [the Applicant] fears to return to Pakistan. He has a young daughter who could be abducted and raped by extremists as a reprisal act against the applicant for not supporting their activities.

19. The applicant was asked to explain to the Tribunal what the “APMSO” is and what it stands for? The applicant said that the APMSO “is a party-political organisation in Karachi.” The applicant went on to say that this organisation “…is present on the campuses of the local University [in Karachi] and recruits students to [do the] party’s bidding.”

20. This party’s major work in the local University is “to work [with students] and recruit them to attend political rallies and protests” according to the applicant.

21. The applicant said that “he wanted to stay away from this political party” because “he had no real interest to be involved in their politics or their actions.” All the applicant wanted to do [according to his evidence] was to complete his studies at University and to “continue with his life.”

22. The applicant said that he was compelled while at University to do this organisation’s bidding because it was well-known that if one refused to so contribute their time to [them] one would either be “kidnapped “tortured” and “assaulted”.

23. When was the applicant studying at [University 1] and for what degree? The applicant said that he attended [University 1] between the years 2006-2008 and had been admitted studying a [Discipline 1] degree.

24. Did the applicant complete his University degree? The applicant said that “I wanted to finish my studies” but “could not do this because of the troubles at the University.” The applicant told the Tribunal that his “father wanted to me to continue my studies in Australia.”

25. During this time, the applicant’s family home was constantly intruded upon my members of the APMSO demanding his participation at political meetings and rallies and this [according to the applicant] “tarnished his reputation and outlook” locally with others. These pressures placed upon him “twisted his life” and made it “impossible for his sister to get married.”

26. Did the applicant join the APMSO? The applicant said that he was a “member of the party”.

    POLICE INCIDENT CLAIM

27. [In] July 2007, the local police came to the applicant’s family home and “took him away without any reason”. The Tribunal was told that the applicant told the police to “take out an FIR” against this organisation but the police threatened to “take an FIR out [against] him” but [according to the applicant] “they threatened to enter his name” but “they did not include his name on a FIR.” After detaining him for four hours the applicant was released, and he returned to his home.

28. The applicant the Tribunal was told spoke with his father and pleaded with him to be allowed “to leave this negative environment.” The applicant went on to say that his father sympathised with him and supported his intentions to leave Pakistan for studies overseas and so did “his friends” who knew about his problems.

29. The applicant was asked – What does the APMSO stand for? The Tribunal was told that the APMSO is a political party and a social organisation. It also has a close association with organisation known as MQM. It was established after the 1947 Partition of the Indian Sub-continent and largely attracted interest and support from Urdu speakers. This political organisation [according to the applicant] supports the ‘rights of the Urdu speaking population …’

30. Did the applicant join this party? The applicant said that he was forced to be member and involved with this political organisation. The applicant was ‘told’ to go to ‘local rallies’ and also to lend support to the ‘speeches that were made by the party leadership.’ The applicant was ‘told’ to organise tables at meetings held and to ‘organise meetings.’

31. The Tribunal was told that if a person refused to participate when it was demanded of them to do so, the organisations militant members ‘would beat people’ into doing what was demanded of them.

32. What protection was provided by the local authorities? The applicant told the Tribunal that ‘no protection was provided by the [local] authorities.

33. Why did this political organisation have such a strong ‘vendetta’ against you? The applicant said that he had become the centre of attention with this political organisation because he ‘did not want to join this [Party].’ Also, the area or district in which the applicant lived – it was ‘a very strong area of support for this political organisation.’

34. Why did this party concentrate on you when there were so many other Urdu-speaking members in the area? The applicant explained to the Tribunal that the interest this organisation had in him was because of family members’ involvement in local politics. The applicant told the Tribunal that ‘two or three members of his family’ (on the paternal side) had their own unique political views’ and had been involved and supported the PP (Peoples’ Party).’ The applicant also told the Tribunal that his ‘grandfather’ was the local Chairman of PP and had on many occasions ‘expressed strong political opinions.’

35. Why was the information concerning the applicant’s family’s political involvement not made known to the Department? The applicant told the Tribunal that “telling [his] story was difficult…” because [he] did not know what to tell them [the Department].’ The applicant went on to say that ‘that was why he was now before the Tribunal…wanting to tell [the Tribunal] his story.’ Moreover, the applicant said that “…I do not know what to say…” “…if someone had told me [the applicant] I would have told the [Department] all that I knew.’

    Applicant’s studies while in Australia

36. The applicant told the Tribunal that [he] commenced his studies in 2008. The applicant confirmed for the Tribunal that he had studied and completed a Certificate III and Certificate IV in [Discipline 2]. Also, the applicant undertook a Certificate in [Discipline 3] which was not completed because [according to applicant] his studies impacted upon by the ‘death of his grandfather’.

37. The applicant also confirmed that one reason for him not having completed his studies while here in Australia was the fact that his application for a Student visa was rejected and that rejection was affirmed by the Migration Review Tribunal in …. and the Minister refused to intervene in this matter when requested by the applicant to consider doing so.

    Applicant’s migration history

38. The applicant was asked to explain to the Tribunal why did he choose to return to Pakistan on tow occasions when he claimed that he was threatened (if he returned)? The applicant first confirmed to the Tribunal that he returned to Pakistan twice – first [in] May 2010 and second [in] January 2012. The applicant explained his return to Pakistan [in] May 2010, as “home sickness”. On the second return, [in] January 2012, he left Australia, so he could attend his “brother’s wedding”.

39. The applicant told the Tribunal that on his second trip to Pakistan, he “had grown a beard” in order “to hide his identity” when travelling in public. However, that trip was “cut short” by “one or two weeks” because ‘unknown people’ started ‘following’ the applicant and his wife.

40. The applicant explained to the Tribunal that his first return to Pakistan ([in] May 2010) was for – as he described it “compassionate grounds”. His elderly father had a [medical] operation (removal of one [body part]) and the applicant wanted to see him and to be with him.

41. The applicant was asked to explain – why he chose to return to Karachi even though [as he claimed] he had left it because of the dangers (personal) he faced? The applicant admitted to the Tribunal that despite the fear and threats – he ‘did go back’ for his father and then, for his brother’s wedding.

42. The Tribunal asked the applicant – when you applied for your student visa was it to be able to study in peace and to escape [the situation] in Pakistan? The applicant told the Tribunal that he decided to come to Australia ‘to study and then to return to Pakistan after getting [my] education…’ The applicant went on to tell the Tribunal he needed to pursue his education and studies ‘in peace’ and to ‘escape the danger[s] in Pakistan’. The ‘negative’ environment and constantly being in ‘harm’s way’ was helping him while he was in Pakistan (at University).

    Timing of the Protection visa Application

43. The applicant was asked to explain – why it took him seven (7) years to submit his application for Protection? The applicant’s explanation was that “I was not aware that such an option (Protection visa) existed…” He had not encountered “…any information or guidance…” on the option of Protection. The applicant also indicated in his explanation that his former migration agent did not provide him with the “…proper guidance…” Overall, the applicant told the Tribunal that he did “…not know about this [Protection visa]’ and “…it was only after his Ministerial Intervention was rejected that [I] found out about the Protection visa…”

44. The applicant admitted to the Tribunal that the Protection visa option he later followed was told to him “by a friend” in “2013”.

45. The Tribunal asked the applicant – what do you fear if you were to return to Pakistan in the reasonably foreseeable future? The applicant said that his wife and young child will fall victims to those who are persecuting him for refusing to do the requests of the local APMSO Party.  The applicant fears that his daughter and wife may kidnapped and even killed as a reprisal against him. The applicant believes that no place in Pakistan is safe for him and his family.

1. The Tribunal asked the applicant – whether he was currently employed? The said that he was not current working. He went on to say, that his wife worked in the past and had saved some money. He also told the Tribunal that he received an “early payment of his superannuation money” – about “AUD$10,000.00” which the applicant and his family “are living off…” The applicant also said that his “wife was completing her studies…” for a “bachelor’s degree in [Discipline 4]…” but he did not know “when she was to complete it…”

2. The applicant was asked by the Tribunal – if he was to return with his wife and daughter to Pakistan in the reasonably foreseeable future would he consider ‘relocation’ to another part of Pakistan where it was, in his opinion safe? The applicant told the Tribunal to consider the numerous news reports concerning the ‘situation in Pakistan’. No place in Pakistan, according to the applicant, is safe for him or his family. There are, ‘news of kidnappings’ happening everywhere and no place/city in Pakistan is safe, the applicant told the Tribunal.

3. The applicant concluded his comments to the Tribunal by saying that he ‘feared for his young daughter’. He did not want to see his daughter threatened or kidnapped by these extremists who affected his life so much.

4. The Tribunal directed that the applicant provides further documents concerning his matter, and a further clarification of any issues he raised in the hearing – within seven days.

   Further post-hearing submissions provided to the Tribunal by the applicant

5. The applicant provided the following written statement:[2]

   [2] see AAT File for original and Attachments

   ·Respected Member as per you requested the documents that you require within 7 days from the day of hearing which was on the 3^rd of August 2021. I have attached my completion of my certificates of diploma in [Discipline 2] and the evidence of my beloved late Grandfather [Mr A] and my uncle [Mr B] as per your requested

   ·In Pakistan my Grandfather [Mr A] has actively participated in political and social activities. He has held major key office position and has always maintained government office at a higher level, in which he held the position of [specified office] Pakistan people’s Party Karachi Division, Member [of specified] Committee and [specified office] Zakat and Ushr, East Karachi Division etc.

   ·Whereas my uncle [Mr B] has also held key positions in the government and in different Party positions of Pakistan People’s Party. he was appointed as [specified office] of Karachi Division and [specified office] of Karachi division.

   ·The change of circumstances in my life as I applied the refugee visa in 2015 and I got married [in] April 2016 after the year I applied the refugee visa and the year after I got married my daughter ([age]) was born on [date] and from that point onwards I got more concerned about my family my wife and my daughter and her future as she has started her kinder and soon she will start her schooling. As a father since the day she born all I’m worried about her and my wife safety and there life I’m not seeing in Pakistan because I’m scared that If my life is not safe what if they do something to me if I go back to Pakistan and what if because of what happened to me something happened or someone cause any harm to my family my wife and my daughter and I cannot take any risk to go back and take my family back to Pakistan, none of the part in Pakistan is saved at all every day I get to hear the news about guys taking away from the family and never comeback home and I got to hear the news of young female kids got kidnap and gets brutally rape and murder no city in Pakistan is safe from all this brutality and victimization of women and kids, I have a question that what if I go back with my family and something does happens to my daughter than who will be responsible for that?

   ·I want to mention some of the brutal event that happened in in recent time in almost everywhere in Pakistan

   ·The recent event that happened not far away in July 21^th 2021 a girl name Noor Mukadam was killed brutally and it was in the very high class area in the capital of Pakistan in Islamabad in f-7 area which is one of the most highly secure area that is 15 mins away from the Australian embassy and even that area is not secured. If a diplomat daughter was not safe in Pakistan than how can I expect my wife and my daughter to be safe in any area any city of Pakistan.

   Another incident that happened in an highway near Islamabad and Lahore on the 9^th of September 2020 the gang rape of a mother happened in front of her kids which is devastating and horrific 2017 in Kasoor a young 7-year-old girl was brutally raped and murdered            July 27^th a young girl was missing in Korangi Karachi and found dead and her body was founded in a garbage are few of the cases that’s been reported but there are hundreds of cases like this that happened in Pakistan in everyday bases which are not even reported and after hearing about all these I would never even imagine taking and my wife and daughter and myself to Pakistan. I have a very strong and very emotional relation with my family specially with my daughter. There is not a single day that I did see my daughter I don’t even imagine living with my family my wife and my daughter and he age that my daughter is in now for the development of a child both parents need to be equally involved

   ·The applicant also provided the Tribunal with copies of Certificate IV and Diploma completion letter.

   ·Photographs (undated) showing his grandfather and uncle’s political involvement with the late Pakistani [political figure], [named].

   ·The grandfather’s political party membership card.

   COUNTRY INFORMATION – ISLAMIC REPUBLIC OF PAKISTAN – POLITICS AND THE RULE OF LAW IN RECENT TIMES[3]

   [3] The information here, referenced by the Tribunal is sourced to the DFAT (Department of Foreign Affairs & Trade) Country Information Report on Pakistan, 2019 and UK Home Office, Country Policy and Information Note, Pakistan: Political Parties and Affiliation, Version 1.0, December 2020.

   Overview of the political system in Pakistan

6. Pakistan has a federal system of government with a bicameral legislature: the National Assembly and the Senate. All four provinces – Baluchistan, Khyber Pakhtunkhwa, Punjab and Sindh – have their own elected provincial assemblies and governments. Pakistani Kashmir is administered as 2 territories: Azad Jammu and Kashmir (AJK), and Gilgit-Baltistan (GB). Each has an elected assembly and government with limited autonomy.

7. Political parties in Pakistan are able to participate in the electoral process. Large and small parties as well as independent candidates compete in national and provincial elections and function in parliament. Opposition parties, including the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP), hold power or significant shares of assembly seats at the national and provincial level. Major parties’ freedom to operate is related to the strength of their relationships with unelected arms of the state, for example, the military.

8. The July 2018 general elections were won by the Pakistan Tehreek-e-Insaf (PTI), led by Imran Khan, with a majority of seats in the National Assembly, removing the incumbent PML-N party from power. The elections generally complied with international standards although there were accusations of pre-poll manipulation and harassment, some restrictions on freedom of expression and unequal campaign opportunities as well as threats and violence targeting political parties, candidates and election officials. The PTI fell short of the 172 seats needed to form a government by itself, so formed a coalition government with 6 smaller parties.

   Political system – the Constitution

9. As noted in Jane’s Sentinel Security Assessment:[4]

   ‘Pakistan's constitution is an amended version of the country's third constitution, which was promulgated in 1973. It provides for a federal system of government, with a bicameral legislature consisting of the National Assembly and the Senate. In addition, each province has a unicameral provincial legislature. The head of state is the president, who is also commander-in-chief of the armed forces. Since the 18th amendment in 2010, however, the presidency has been largely ceremonial with executive power concentrated around the prime minster and cabinet. Under the constitution, Islam is the state religion of Pakistan. Constitutional amendments require a two-thirds majority in both the National Assembly and the Senate. The most recent amendment was in 2018, which provided for the administrative merger of the former Federally Administered Tribal Areas into the province of Khyber Pakhtunkhwa.’

   [4] Jane’s, ‘Pakistan – Internal Affairs’ (Constitution), last updated 26 March 2019

   Parliament, President and Prime Minister

10. The European Union Election Observation Mission (EOM) report on Pakistan’s 2018 general elections noted: ‘The Islamic Republic of Pakistan is a federal parliamentary republic and comprises four provinces, Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh, as well as Islamabad Capital Territory (ICT) and two autonomous regions, Gilgit-Baltistan and Azad Jammu and Kashmir (Pakistan-administered part of Kashmir). The Federally Administered Tribal Areas (FATA) as an administrative unit is currently merging with Khyber Pakhtunkhwa.’[5]

    [5] EOM, ‘Final Report General Elections, 25 July 2018’ (page 9), October 2018

11. As Jane’s noted:

    ‘Parliament consists of two houses: the Senate and the National Assembly. The National Assembly has a five-year term and a total of 342 seats, of which 272 are elected through universal adult suffrage. Seats are allocated to provinces as follows: 141 to Punjab; 61 to Sindh; 51 to Khyber Pakhtunkhwa (renamed in 2010 from North-West Frontier Province); and 16 to Balochistan. In addition, the Federal Capital District of Islamabad has two, with 10 additional seats reserved for religious minorities and 60 seats for women. The Senate currently consists of 100 members, elected by the provincial legislatures; senators are elected for a six-year term…

    ‘Each province of Pakistan is directly governed by provincial assemblies. The provincial assemblies consist of both general seats and seats reserved for non-Muslims as well as for women. In total, Baluchistan’s provincial assembly has a total of 65 seats (51 general, 11 for women, three for non-Muslims); Khyber Pakhtunkhwa 124 (99 general, 22 for women, and three for non-Muslims); Punjab 371 (297 general, 66 for women, eight for non-Muslims); and Sindh 168 (130 general, 29 for women, and nine for non-Muslims). Elections for provincial assemblies are held directly and every five years unless dissolved earlier. In line with the 18th amendment of the constitution, chief ministers rather than governors exercise executive authority. The provincial assemblies elect the upper chamber (the Senate). Each of the four provinces has 19 senators, eight of which are appointed from the Federally Administered Tribal Areas (FATA) and three from the Federal Capital area. Following the 18th amendment, provincial assemblies have the power to legislate on most issues, including subjects such as land acquisition, law and order, and environmental protection.’[6]

    [6] Jane’s, ‘Pakistan – Internal Affairs’ (Legislature / Regional and local…), updated 26 March 2019

12. As noted by The Economist Intelligence Unit (EIU), in its profile for Pakistan, 1 September 2020, ‘The president, Arif Alvi, was sworn into office for a five[1]year term in September 2018. The prime minister and head of government, Imran Khan, presides over a cabinet of ministers chosen from the elected members of parliament.’[7]

    [7] EIU, ‘Pakistan – Political structure’, 1 September 2020

    Participation and affiliation

13. Bertelsmann Stiftung’s Transformation Index (BTI) 2020 covers the period from 1 February 2017 to 31 January 2019. The BTI assesses the transformation toward democracy and a market economy as well as the quality of governance in 137 countries7. The report noted, ‘Political parties and the party system in Pakistan tend to be weak, internally undemocratic and personalistic, centered on an individual or dynasty, and sometimes splitting along the lines of personal rivalries for leadership…’[8]

    [8] BTI, ‘2020 Country Report’ (page 13), 2019

14. The US Department of State’s Country Report on Human Rights Practices for 2019 (USSD HR Report 2019) noted:

    ‘There were no reports of restrictions on political parties participating in elections, except for those prohibited due to terrorist affiliations. Judges ordered media regulatory agencies to enforce constitutional bans on content critical of the military or judiciary, compelling media to censor politicians’ speeches and elections-related coverage deemed “anti-judiciary” or “antimilitary.” Organizations that monitor press freedom reported direct pressure on media outlets to avoid content regarding possible military influence over judicial proceedings against politicians, and to refrain from reporting on PML-N leaders in a positive way. In most areas there was no interference with the right of political parties and candidates to organize campaigns, run for election, or seek votes. In Balochistan, however, there were reports security agencies and separatist groups harassed local political organizations, such as the Balochistan National Party and the Baloch Students Organization.’[9]

    [9] USSD, ‘Country Report on Human Rights 2019’ (section 3), 11 March 2020

15. Regarding the right to organise political groups Freedom House observed, in its 2020 annual report on Pakistan, covering 2019 events:

    ‘Several major parties and numerous smaller parties and independents compete in elections and are represented in the parliament and provincial legislatures. However, established parties maintain patronage networks and other advantages of incumbency that hamper competition in their respective provincial strongholds. In recent years, it has become increasingly apparent that major parties’ freedom to operate is related to the strength of their relationships with unelected arms of the state, which have sought to sideline figures not to their liking through a variety of legal and extra-legal means.’[10]

    [10] Freedom House, ‘Freedom in the World 2020 - Pakistan’ (section B1), 5 March 2020

16. The same report noted:

    ‘Opposition parties campaign and contest elections, and each of the last three national elections has resulted in an erstwhile opposition party taking power at the federal level. Opposition parties also continue to hold power or significant shares of assembly seats at the provincial level. However, the military is currently considered more powerful than the elected politicians and the judiciary has shown a willingness to engage in politically targeted accountability. Therefore, opposition parties have increasingly concluded that their most plausible route to power is by winning the backing of the unelected establishment rather than through a straight electoral contest.

    ‘In 2019, the PML-N and PPP, both former governing parties, were profoundly disrupted by a barrage of cases brought against their first- and second-rank leaders, as well as against party activists who tried to support them. Cases brought by the government included corruption, alleged breach of media regulations, and participation in unauthorized demonstrations. Those targeted included former prime minister Nawaz Sharif, his daughter Maryam Nawaz, his younger brother and former Punjab chief minister Shahbaz Sharif, and former prime minister Shahid Khaqan Abbasi, all political figures within PML-N, as well as former president Asif Ali Zardari of PPP, and his sister, Faryal Talpur, also a PPP politician. They spent much of the year in court, in jail, or in court-authorized medical treatment. The judicial harassment in 2019 was a continuation of the 2017–18 prelection disruption of the PML-N campaign by the military and judicial establishment, which featured the effective removal from political life of Nawaz Sharif through a series of dubious court rulings, and subsequent weakening of his PML-N party.’[11]

    [11]Freedom House, ‘Freedom in the World 2020 - Pakistan’ (section B2), 5 March 2020

17. The 2019 DFAT report noted that ‘Pakistanis have historically tended to vote more according to ethnic, local or feudal ties rather than ideological, religious or sectarian allegiances. The political system includes representation from a broad range of political, ethnic and religious interests. Local sources observed in early 2018 that religion and conservatism appeared to dominate the election campaign process, fostering religious intolerance at the community level.’[12]

    [12] DFAT, ‘Country Information Report Pakistan’ (page 16), 20 February 2019

    Political parties - Main parties (including leaders, support bases and treatment of)

18. The EOM report noted:

    ‘The key contenders for the 2018 general elections were the Pakistan Muslim League-Nawaz (PML-N), the Pakistan Peoples Party (PPP), the Pakistan Tehreek-e-Insaf (PTI), an alliance of religious parties, the Muttahida Majlis-e-Amal (MMA) and the Muttahida Qaumi Movement Pakistan (MQMP). The outgoing National Assembly comprised the government coalition led by the PML-N and several opposition parties, the strongest being the PPP, the PTI and the Muttahida Qaumi Movement (MQM).’[13]

    [13] EOM, ‘Final Report General Elections, 25 July 2018’ (page 10), October 2018

19. The BTI 2020 Report noted:

    ‘The three major political parties with nationwide representation are the PTI [Pakistan Tehreek-e-Insaf (Pakistan Justice Movement)], the Pakistan Muslim League-Nawaz (PML-N) and the Pakistan Peoples Party (PPP). The Islamic parties have followers mostly in urban areas and in the Khyber Pakhtunkhwa. The PML-N is the exclusive preserve of the Sharif family. The PPP has had a hereditary chairmanship since its inception; it is headed by the Bhutto family from Larkana, with Benazir Bhutto’s son now a member of the national legislature. In addition, there are several regional parties based on ethnicity, such as the Awami National Party (ANP), Muttahida Qaumi Movement (MQM) with a stronghold in Karachi and the Baluchistan Nationalist Party (BNP).’[14]

    [14] BTI, ‘2020 Country Report’ (page 13), 2019

20. The Election Commission of Pakistan (ECP) published an undated list, accessed 3 August 2020, of the 126 registered political parties[15]. The same source also named the symbols allotted to 110 parties.[16]

    [15] ECP, ‘List of Enlisted Political Parties’, no date

    [16] ECP, ‘List of Enlisted Political Parties’, no date

21. The English language news site, Dawn, reported in June 2020:

    ‘After withdrawal of the support by the four-member BNP-M, the PTI-led ruling coalition has now been left with 180 members on the treasury benches whereas the opposition parties have 161 members in the 341-member house. ‘The PTI is the single largest party in the NA with 156 seats and it has the support of the Muttahida Qaumi Movement (seven seats), Pakistan Muslim League-Q (five), Balochistan Awami Party (five), Grand Democratic Alliance (three), two independents and one member each from Jamhoori Watan Party and Awami Muslim League. ‘On the other hand, the opposition with the inclusion of the BNP-M now has 161 seats with Pakistan Muslim League-Nawaz having 84 seats, Pakistan Peoples Party 55, Muttahida Males-i-Aimal 15, two independents and Awami National Party one seat.’[17]

    [17] Dawn, ‘Setback for PTI as BNP-M quits ruling alliance’, 18 June 2020

    Awami National Party (ANP)

22. An undated article in the English language news site, Dawn, noted that the Awami National Party (ANP) was formed in 1986 and follows the ideology of Khan Abdul Ghaffar Khan, known as Bacha Khan by his supporters, who preached non-violence and believed in maximum provincial autonomy[18].

    [18] Dawn, ‘Awami National Party’, no date

1. The DFAT report noted: ‘ANP is a Pashtun nationalist, secular political party that promotes opposition to the TTP [Tehrik-e-Taliban Pakistan], with headquarters in Peshawar, Khyber Pakhtunkhwa. ANP’s major support bases are in Khyber Pakhtunkhwa and Balochistan. ANP formed in 1986 as a successor to the National Awami Party, and served in several national and provincial coalition governments in the 1990s. Between 2008 and 2013, the ANP governed Khyber Pakhtunkhwa province and was a junior partner in the federal coalition government with the Pakistan People’s Party. … Like other parties in Pakistan, the ANP can be affected by politically motivated violence. It is also the target of violence from militant groups.’[19]

   [19] DFAT, ‘Country Information Report Pakistan’ (paragraphs 3.170-3.171), 20 February 2019

2. A prominent anti-Taliban party, ANP members have been attacked by the TTP for its secular ideology, for openly supporting the counter-insurgency operations in the former Federally Administered Tribal Areas (FATA) and Khyber Pakhtunkhwa, as well as for its work to improve the Pakistan/Afghanistan relations[20] [21].[22]

   [20] RFERL, ‘Anti-Taliban Party Official Gunned Down In Pakistan's Peshawar’, 29 June 2019

   [21] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.171), 20 February 2019

   [22] The Diplomat, ‘Pakistan’s Anti-Taliban Party on the Hit List Again’, 12 July 2018

3. The DFAT report noted some attacks on ANP members in recent years: ‘In July 2018, a suicide bomb attack at an election rally in Peshawar wounded at least 69, and killed at least 20 people, including prominent local ANP politician Haroon Bilour. Bilour was a Provincial Assembly candidate for the July 25 2018 general elections. His father, Bashir Bilour, a prominent ANP politician, was also killed by a suicide bomber in 2012. The ANP was the target of TTP attacks during lead up to the May 2013 elections. Many of the party’s leading candidates restricted their electioneering to their houses or via Skype. On 11 April 2016, militants killed an ANP leader in Swat, Khyber Pakhtunkhwa.’[23]

   [23] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.172), 20 February 2019

4. In June 2019, local ANP leader, Sartaj Khan, was shot and killed by unknown assailants in Peshawar.[24] Radio Free Europe Radio Liberty (RFERL) reported on the death of Khan and noted that, although no one had claimed responsibility, ‘ANP members have frequently been attacked by the Tehrik-e-Taliban Pakistan (TTP) in recent years.’[25] The ANP claimed ‘hundreds’ of its leaders and activists had been killed since 2007.[26] [27]

   [24] Daily Times, ‘ANP leader shot dead’, 30 June 2019

   [25] RFERL, ‘Anti-Taliban Party Official Gunned Down In Pakistan's Peshawar’, 29 June 2019

   [26] RFERL, ‘Anti-Taliban Party Official Gunned Down In Pakistan's Peshawar’, 29 June 2019

   [27] The News, ‘ANP lost prominent leaders in attacks in recent years’, 2 July 2019

   Muttahida Qaumi Movement (MQM)

5. BBC News noted that the MQM was founded in 1984, ‘… as the party of Urdu-speakers who migrated from India at the time of the 1947 partition, known as Muhajirs.’[28]

   [28] BBC News, ‘Pakistan MQM founder Altaf Hussain arrested in UK’, 11 June 2019

6. As noted in the DFAT report:

   ‘MQM is a Karachi-based secular political party which advocates the rights of “Mohajirs”, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.’[29]

   [29] The News, ‘ANP lost prominent leaders in attacks in recent years’, 2 July 2019

7. The DFAT report provided an overview of MQM members targeted by law enforcement agencies and non-state actors in recent years, noting:[30]

   ‘In 2013, the Rangers – a federal, paramilitary force –… commenced operations in Karachi that significantly reduced political violence. MQM leaders claim the Rangers disproportionately targeted MQM, affecting over 500 families since 2013. MQM claims that, since 2013, over 140 of its members were subject to enforced disappearances and over 100 to extra[1]judicial killings. MQM further claims that government forces detained more than 1000 of its members in the same period. MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.

   ‘While numbers are difficult to verify, reports indicate the Rangers killed many MQM members during operations against alleged violence and extortion. In August 2016, the Rangers announced they had apprehended 848 assassins affiliated with MQM “militant wings” since September 2013. The Rangers claimed that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. MQM suspects have reportedly confessed to involvement in 5,863 incidents of targeted killings. ‘Militant groups such as the TTP have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years. Anti-MQM sentiment is also connected to allegations that MQM has links with Indian intelligence. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.’[31]

   [30] DFAT, ‘Country Information Report Pakistan’ (paragraphs 3.164-3.166), 20 February 2019

   [31] BBC News, ‘Pakistan MQM founder Altaf Hussain arrested in UK’, 11 June 2019

8. In 2016, the MQM split into 2 factions: the MQM-L (London) led by Altaf Hussain, living in self-imposed exile in the UK, and the MQM-P (Pakistan), initially led by Farooq Sattar, who was succeeded by Khalid Maqbool Siddiqui in February 2018.[32] [33] The split followed a speech by Hussain which contained anti-Pakistan rhetoric and reportedly urged supporters to attack news outlets that did not give MQM enough media coverage[34] [35] . Sources indicated that Altaf Hussain still held considerable influence in the party, primarily based in Karachi.[36] [37]

   [32] BBC News, ‘Pakistan MQM founder Altaf Hussain arrested in UK’, 11 June 2019

   [33] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.168), 20 February 2019

   [34] The News, ‘Why did MQM split?’, 27 September 2016

   [35] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.168), 20 February 2019

   [36] BBC News, ‘Pakistan MQM founder Altaf Hussain arrested in UK’, 11 June 2019

   [37] The National, ‘Altaf Hussain: UK trial begins for Pakistani MQM founder …’, 1 June 2020

9. The USSD HR Report 2019 noted that political violence in Karachi continued, though added ‘… violence declined, and gang wars were less prevalent than before security operations in the city. In February [2019] the Sindh Rangers, a paramilitary force technically under the army’s control and operating under a mandate renewed every 90 days by the provincial government, announced the arrest of eight suspected hitmen involved in attacks on Muttahida Qaumi Movement-Pakistan (MQM-P) and PSP [Pak Sarzameen Party] workers.’[38]

   [38] USSD, ‘Country Report on Human Rights 2019’ (section 1g), 11 March 2020

10. Altaf Hussain was arrested and bailed in London in June 2019 on charges of encouraging terrorism through hate speech[39] . On 1 June 2020, Hussain’s trial began at the Old Bailey, London, via video-link, due to coronavirus lockdown restrictions[40] . Meanwhile, on 18 June 2020, an anti-terrorism court in Pakistan ruled that Hussain ordered the killing of fellow MQM leader, Dr Imran Farooq, in London in September 2010[41] [42]. Three members of the MQM were sentenced to life imprisonment for Farooq’s murder[43] . On 11 November 2020 it was reported that the Federal Investigation Agency (FIA) had included Altaf Hussain on its ‘Most Wanted Terrorists’ list.[44]

    [39] Pakistan Today, ‘UK court to begin Altaf’s trial in hate speech case on June 1’, 19 November 2019

    [40] The National, ‘Altaf Hussain: UK trial begins for Pakistani MQM founder …’, 1 June 2020

    [41] Indian Express, ‘MQM founder Altaf Hussain ordered the killing of party leader …’, 18 June 2020

    [42] Dawn, ‘MQM founder Altaf Hussain ordered the killing of Dr Imran Farooq in UK…’, 19 June 2020

    [43] Reuters, ‘Pakistani court convicts three in politician's murder in London’, 18 June 2020

    [44] The News, ‘MQM founder Altaf Hussain among others included in FIA's 'Most Wanted Terrorists' list’, 12 November 2020

11. Whilst the MQM-L boycotted the 2018 general election, citing repression of the Muhajirs, the MQM-P won 7 National Assembly seats and became a member of Pakistan's governing coalition[45] . The National Assembly website listed the seats held by the MQM-P[46]. In January 2020, MQM-P leader, Khalid Maqbool Siddiqui, resigned his post of Information Technology minister, citing the government’s failure to improve conditions in Sindh[47]. The party said it would, however, continue its allegiance with the ruling Pakistan Tehreek-e-Insaf (PTI).[48] The MQM-P, who mostly represent urban voters, is the main opposition to the PPP-led Sindh provincial government.[49]

    [45] BBC News, ‘Pakistan MQM founder Altaf Hussain arrested in UK’, 11 June 2019

    [46] National Assembly, ‘MQMP seats distribution’, no date

    [47] Pakistan Today, ‘MQM-P chief quits cabinet over broken promises’, 13 January 2020

    [48] Pakistan Today, ‘MQM-P chief quits cabinet over broken promises’, 13 January 2020

    [49] HRCP, ‘State of Human Rights in 2019’, (page 94), April 2020

    Pakistan People’s Party (PPP)

12. Profiling the Sindh-based[50] PPP, Dawn noted ‘The Pakistan Peoples Party (PPP) was founded by the late Zulfiqar Ali Bhutto in 1967, with an aim to implement the ideology of what he called Islamic socialism.’[51] Bilawal Bhutto Zardari, son of former Pakistani President Asif Ali Zardari and murdered ex-Prime Minister Benazir Bhutto, chairs the PPP90, which forms the provincial government in Sindh[52] . Party Vice-President, Sherry Rehman, is Parliamentary Leader of the PPP in the Senate[53] . The PPP (albeit under the separate entity Pakistan People’s Party Parliamentarians – PPPP, formed in 2002 to comply with electoral laws[54]), holds the majority of seats in the Sindh Provincial Assembly[55] [56] .

    [50] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.3), 20 February 2019

    [51] Dawn, ‘Pakistan Peoples Party’, no date

    [52] BBC News, ‘Bilawal Bhutto Zardari: Heir to a political dynasty’, 25 July 2018

    [53] HRCP, ‘State of Human Rights in 2019’ (page 93), April 2020

    [54] Sherry Rehman, ‘Bio’, no date

    [55] PPPP, ‘About us’, no date

    [56] Provincial Assembly of Sindh, ‘Members Directory: By party affiliation’, no date

13. The Diplomat, reporting in December 2016, noted:

    ‘… over the last decade, the party has slowly lost its control in a majority of urban areas with the Pakistan Tehreek–e–Insaf (PTI) and other smaller parties chipping off the former’s vote bank. The PPP’s only committed vote bank is based in rural Sindh that by and large has come to define its survival in the face of a multitude of political challenges, ranging from its corruption-littered governance records to the alienation and loss of the organization’s ideological voters across the country…

    ‘… the party no longer holds true to its early mission of fighting for the country’s poor and its youth who once comprised the core of its support base. By and large, corruption and bad governance have delegitimized the PPP in the eyes of youth and poor who even seem indifferent to Bilawal’s repeated appeals and promises of returning the party to its past glory.’[57]

    [57] The Diplomat, ‘Can the Pakistan People’s Party Restore Itself …?’, 30 December 2016

14. Former president, Asif Ali Zardari of the PPP, and his sister, Faryal Talpur, also a PPP politician, face charges of corruption[58] [59]. The HRCP 2019 report noted ‘Several members of the central leadership of the Pakistan People’s Party (PPP), from the chairman of the party to the Chief Minister as well as scores of party leaders are facing corruption charges and money laundering cases initiated by the National Accountability Bureau (NAB) in Sindh.’[60]

    [58] Freedom House, ‘Freedom in the World 2020 - Pakistan’ (section B2), 5 March 2020

    [59] HRCP, ‘State of Human Rights in 2019’ (page 39), April 2020

    [60] HRCP, ‘State of Human Rights in 2019’ (page 74), April 2020

    Student politics - Student unions

15. Voice of America (VoA) reported on 29 November 2019 ‘Thousands of Pakistani students marched in demonstrations spanning the country Friday demanding the right to once again form student unions, which was taken away in 1984 by military dictator Zia ul-Haq.’[61]

    [61] VoA, ‘Students in Pakistan Demand Right to Form Unions’, 29 November 2019

16. The HRCP report for 2019 observed ‘At the beginning of November, progressive student organisations from all over the country formed a Student Action Committee to coordinate demands for the revival of student unions and action against cuts in the educational budget, harassment cases in universities, interference of security forces in educational institutions, student torture cases, lack of educational infrastructure, and the ban on freedom of expression.’[62]

    [62] HRCP, ‘State of Human Rights in 2019’, (page 38), April 2020

17. Referring to events in Khyber Pakhtunkhwa, the HRCP report for 2019 noted, ‘In December, the Jamiat Tulaba-e Islam (JTI), the student wing of JUI-F, staged a protest in Mingora demanding restoration of student unions, a uniform education system, replacement of English with Urdu as the medium of instruction in educational institutions, and free education.’[63]

    [63] HRCP, ‘State of Human Rights in 2019’, (page 134), April 2020

18. According to the VoA article ‘Students who want admission in Pakistani colleges and universities have to sign an affidavit, along with their parents that says the student cannot participate in any mobilization or political activity on campus.’[64]

    [64] VoA, ‘Students in Pakistan Demand Right to Form Unions’, 29 November 2019

19. The HRCP report for 2019 noted that ‘In December both sides of the National Assembly united in support of an opposition private member’s bill for the lifting of the ban [of student unions]. The bill was sent to the relevant committee for further consideration.’[65]

    [65] HRCP, ‘State of Human Rights in 2019’, (page 225), April 2020

20. According to a report on Pakistan campus politics, TRT World, a Turkish state international English-language news channel, stated in January 2020, ‘[V]iolent clashes between student groups have become a regular characteristic of Pakistan's state-run academic institutions. Most recently, a student, who was a member Islami Jamiat-e-Talaba, was killed and dozens were injured in a violent clash on December 12 [2019] between two student groups at a government university in Islamabad.’[66]

    [66] TRT World, ‘Pakistan’s trouble with accepting campus politics’, 8 January 2020

21. The same report added: ‘The present-day government's reluctance to normalise campus politics is not only based on the fears of previous governments but also on the fresh memories of campus violence that have been witnessed in recent years. A mob of students stripped, beat up and shot Mashal Khan, a 23-year-old student, at Wali Khan University in Mardan in April 2017 for committing “blasphemy”. In another case, a student killed his college principal in the district of Charsadda in Khyber Pakhtunkhwa province in January after the former was reprimanded for skipping classes and attending the anti-blasphemy sit-in of a religious party. ‘Although many religious schools (known as madrassas) in Pakistan have been accused of promoting radical ideologies and having links with terrorist networks, law enforcement agencies in recent years have arrested just two students, Saad Aziz and Naureen Leghari, in separate raids for their alleged role in terrorist activities.’[67]

    [67] TRT World, ‘Pakistan’s trouble with accepting campus politics’, 8 January 2020

    Politically motivated violence

22. DFAT noted ‘The government’s ability to maintain law and order against politically motivated violence is limited.’[68]

    [68] DFAT, ‘Country Information Report Pakistan’ (paragraph 2.73), 20 February 2019

23. The same source stated that politically motivated violence occurs across Pakistan, predominantly in Karachi and Balochistan.[69] The USSD HR Report 2019 noted that in Balochistan, ‘[T]he practice of disappearing persons for political dissent continued, with some contacts noting it had escalated across the province.’[70] In 2016, there were 12 incidents of political violence in all of Pakistan, compared to 63 in 2015[71]. In 2016, there were 20 terrorist attacks that targeted political leaders and workers (about 4.5% of total terrorist attacks that year).[72]

    [69] DFAT, ‘Country Information Report Pakistan’ (paragraph 3.159), 20 February 2019

    [70] USSD, ‘Country Report on Human Rights 2019’ (section 1e), 11 March 2020

    [71] PIPS, ‘Security Report 2016’ (page 17), 10 January 2017

    [72] PIPS, ‘Security Report 2016’ (pages 11 and 13), 10 January 2017

24. The DFAT report added:

    ‘Terrorists sought to attack political leaders and workers on 24 occasions in 2018 (compared to 13 attacks in 2017). 16 of the 24 attacks, which were conducted by the TTP and ISIL, were responsible for the total death toll of political leaders and workers, killing 218 and injuring 394 people. Nevertheless, while there was a spike in deaths around the 2018 election, since Operation Zarb-e-Azb, add-ul-Fasaad and the NAP [National Action Plan], violence by groups linked to political parties has generally reduced.’[73]

    [73] PIPS, ‘Security Report 2019’ (page 56), 2020

25. In the election year of 2018, PIPS reported 24 targeted terrorist attacks against political leaders / workers, which killed.[74] [75] In 2019, PIPS recorded a significant decline in targeted terrorist attacks against politicians and workers, noting 9 attacks, including 5 in Khyber Pakhtunkhwa and 4 in Balochistan, which killed 11 and injured 19.[76] In total, PIPS reported 17 incidents of political violence in 2019 – including terrorist attacks against political leaders/workers as well as incidents of political violence directed against members, supporters and leaders of political parties – which claimed the lives of 17 people (compared to 229 in 2018) and injured 26 others.[77]

    [74] CRSS, ‘Q2 Security Report – 2019’, 17 July 2019

    [75] CRSS, ‘Q3 Security Report – 2019’, 10 October 2019

    [76] CRSS, ‘Q1 Security Report – 2020’, 7 April 2020

    [77] PIPS, ‘Security Report 2019’ (page 56), 2020

26. According to the Center for Research and Security Studies (CRSS), a think tank ‘committed to the cause of independent research, non-partisan analysis, and informed advocacy’, 8 politicians were killed in the first quarter of 2019 compared with 14 in the second quarter256, 6 in the third quarter[78]and 2 in the fourth quarter[79] .

    [78] PIPS, ‘Security Report 2019’ (page 56), 2020

    [79] CRSS, ‘Quarterly Security Report Q2, April-June 2020’, 16 July 2020

27. In 2020, no politicians were killed in the first quarter of 2020, whilst 3 were killed in the second quarter (April to June), according to the CRSS[80] .

    FINDINGS AND REASONS FOR DECISION

    [80] PIPS, ‘Security Report 2019’ (page 56), 2020

    Credibility

    Preliminary comments

28. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

    …. care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted….

1. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]):

   …The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…

2. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

3. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

4. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

100.   The applicant claims that he was forced to leave Pakistan because he had been the subject of continual persecution by a particular local (and national) political faction which ‘demanded’ that he commit totally to their platform and participate in their political activities. This ‘persecution’, the Tribunal was told, originated while the applicant attended [University 1] in 2006-2008 and was continued because of his uncle’s and late grandfather’s involvement in local politics as members of the Pakistan Peoples’ Party (‘PPP’). The applicant claimed that he could not receive any protection from the local Pakistani authorities against these intrusions on his person and personal freedoms and his family decided that it was best for him to leave Pakistan in order to be safe and secure.

101.   The Tribunal for the reasons it will provide in its decision which follows accepts that the applicant’s family members (uncle and grandfather) may have had political opinions and involvement in politics at the local level but this involvement was not to the extent the applicant claimed the ‘cause’ for any issues that he may have experienced as he claimed in his evidence before the Tribunal and to that extent the Tribunal does not find his evidence and claims credible.

102.   First, the applicant told the Tribunal that upon his entry to [University 1] in 2006, he was approached by members of APMSO and ‘forced’ by them to do that political party’s wishes at the local level. The applicant admitted to the Tribunal that he was ‘forced’ to ‘join’ the APMSO as a member. His activities as a member of the APMSO, the applicant described as recruiting students for the Party (membership) and distributing the Party’s political messages to the University’s student population and ensuring that all of the Party’s political rallies were well attended by students – when such rallies were held. The Tribunal considered this evidence problematic for the reason that it is not credible. In his evidence to the Department, the applicant tells of his refusal to join the APMSO and therefore, he became the target for their attentions. To the Tribunal, the applicant admitted that he joined the APMSO while he was attending [University 1]. He provided no documents – no membership card but told the Tribunal that he was forced to join the APMSO because if he did not do so, he would either be assaulted and beaten and even murdered. The applicant also told the Tribunal that his family’s home was many times invaded by militant members of the APMSO but none of this was revealed to the Department. Again, such a claim being raised without a proper timeline or corroborative evidence from the applicant’s family members leads the Tribunal to consider such recollections raised by the applicant (at the hearing) as a means of embellishing his claims of being a victim of persecution only for the purpose to attract Australia’s protection obligations under the Convention. The applicant was a university student for two years and in that time he claimed he did the APMSO’s political bidding but he provided very little details of his activities to the Tribunal to show what he was ‘forced’ to actually do as member of this organisation. He provided very little details of what he was forced to do for APMSO. He only told the Tribunal that he recruited students and organised meetings for APMSO but could not tell the Tribunal – as an example, of an actual meeting he helped organise - date, time, speakers etc. In other words, the applicant provided no details of his activities as a APMSO member in the two years he was as he claimed ‘a member of the APMSO’ except to tell the Tribunal that he distributed the Party’s political literature, approached other students for them to join the Party and organised student to attend the Party’s local political rallies. Accordingly, the Tribunal finds that the applicant, if he was to return to Pakistan, does not have a well-founded fear of persecution based on a refusal by him to join the APMSO because he disagreed with their politics and did not want to involve himself in local and university politics with them or for any other reason provided for in s.5J(1)(a) of the Act, now or in the reasonably foreseeable future.  

103.   Second, the applicant claimed that [in] July 2007 he was involved in an incident with the local police. The Tribunal was told that the police came to his family home and took him away to the local police station for questioning. During this encounter with the police, the applicant claimed that he requested them to ‘take out an FIR against the APMSO’ but the Tribunal was told, that the police ‘threatened the applicant with an FIR’ instead. The applicant offered no other explanation for this incident. Indeed, observing the applicant’s department file nothing was mentioned of this incident to the delegate. The Tribunal does not accept that this claim as presented by the applicant is credible. It was presented to the Tribunal in the applicant’s evidence only as a means of bolstering the applicant’s claim for protection. The applicant had previously said that he had no interest in politics locally and that raises the issue – why then, would the local police come to his home and take him away for questioning. What was the purpose of the police action? The applicant provided very little explanation when asked by the Tribunal. His only response was to say that he told them to act against APMSO on his behalf and they refused – indicating that the police has no interest in protecting persons in his predicament.

According to available country information[81] the MQM (the APMSO’s successor organisation) is a Karachi-based secular political party which advocates the rights of 'Mohajirs', or Urdu speaking Muslim migrants (and their descendants) from India. The MQM's representation of Karachi's Urdu-speaking community often brings it into conflict with the Sindhi-backed Pakistan People's Party (PPP) and Pashtun parties.[82] In 2013, the paramilitary Rangers commenced operations in Karachi, which have continued under the banners of Operation Zarb-e-Azb and the National Action Plan. As well as targeting insurgent and sectarian groups, government and military crackdowns have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. The Rangers, a paramilitary security force, have arrested large numbers of people allegedly involved in kidnapping, robbery and extortion in Karachi. Included among those arrested and detained are several thousand members of the MQM.[83] While reliable data is unavailable, Department of Foreign Affairs and Trade understands that serious crime across Pakistan has reduced significantly since the commencement of Operation Zarb-e-Azb and the NAP, including in Karachi.[84] Country information above indicates that Karachi has long been host to political violence but recent security operations have led to an improved security situation. A crackdown on criminal and political violence in Karachi since 2013 has dramatically improved the situation. Having regard to the information provided by DFAT the Tribunal finds there is protection available (if needed) and a reasonably effective system of public protection has been put in place by the Pakistan authorities to so protect the public against militant attacks as is required by s.5LA (2) of the Act. The Tribunal considers on the evidence before it that this protection is durable and effective and that the applicant could request it if he required it. The Tribunal therefore considers and finds that effective protection measures as defined in 5LA of the Act are available to the applicant if, he required them, in Pakistan and may access those if and when he returned to Pakistan in the reasonably foreseeable future.

[81] CISEDB50AD5515 ‘Pakistan Country Information Report’ DFAT (Department of Foreign Affairs and Trade), 1 September 2017

[82] CISEDB50AD5515 ‘Pakistan Country Information Report’ DFAT (Department of Foreign Affairs and Trade), 1 September 2017.

[83] Ibid

[84] CISEDB50AD5515 ‘Pakistan Country Information Report’ DFAT (Department of Foreign Affairs and Trade) 1 September 2017.

104.   Third the applicant claims that he cannot return to Pakistan because of the political beliefs of his family members will cause him problems and could endanger his life and well-being and that of his wife and young daughter. Again, this claim was not made known in his application for protection. It was new evidence the applicant provided to the Tribunal at the hearing. The applicant claimed that his ‘uncle’ and ‘grandfather’ where heavily involved with the Pakistan Peoples’ Party (‘PPP’). Following the hearing, the applicant provided both written and photographic evidence to the Tribunal of the political involvement of his uncle and grandfather.[85] The photographs, show the applicant’s uncle and grandfather at various meetings and rallies with the late [named politician] (leader of the PPP). There are also certain documents which are not translated. The Tribunal accepts that the applicant’s grandfather and uncle were involved in local politics and were members and followers of the PPP. The Tribunal also accepts as the applicant claimed in his written post-hearing submission that both his uncle and grandfather held positions of authority on the PPP’s behalf in Karachi. However, the applicant both in his evidence before the Tribunal and in his written statement explaining his uncle’s and grandfather’s political involvement did not explain – how their involvement directly impacted on his person or how this could cause major issues for him and his family when and if in the future he was to return to Karachi, Pakistan?

[85] see, applicant’s post-hearing submissions to the Tribunal in AAT file.

105.   Current country information concerning the PPP (see above) states that former president, Asif Ali Zardari of the PPP, and his sister, Faryal Talpur, also a PPP politician, face charges of corruption[86] [87]. The HRCP 2019 report noted ‘Several members of the central leadership of the Pakistan People’s Party (PPP), from the chairman of the party to the Chief Minister as well as scores of party leaders are facing corruption charges and money laundering cases initiated by the National Accountability Bureau (NAB) in Sindh.’[88]

[86] Freedom House, ‘Freedom in the World 2020 - Pakistan’ (section B2), 5 March 2020

[87] HRCP, ‘State of Human Rights in 2019’ (page 39), April 2020

[88] HRCP, ‘State of Human Rights in 2019’ (page 74), April 2020

106.   What is claimed by the applicant is that he has a real chance of serious harm or faces a real risk of significant harm based on his political opinion being imputed by the political beliefs and political involvement of his uncle and paternal grandfather. The applicant’s evidence made no mention of his uncle’s or grandfather’s implication in any local politically sensitive scandals or political corruption which were or are the subject of any local or national investigation as the country information reports as far as it concerns that Party’s national leadership. The Tribunal was only told that the two were well-known members of the PPP. The Tribunal accepts that the uncle and grandfather were members and high profile members, of the PPP locally, but the Tribunal cannot understand or accept or find that the applicant’s claim that their membership (the uncle’s and grandfather’s) which was uneventful would in any way cause the applicant to fear persecution of himself and his family if he was to return to Karachi, Pakistan in the future or that he might be targeted with some political opinion being imputed by his association with his uncle or grandfather. From the information available, no local pogroms have been reported against PPP members only that the leadership of the PPP have been subjected to investigation - nationally. In the context of the applicant’s own admission that he had never been questioned or harmed regarding his relationship and association with uncle or grandfather who were PPP members and the substantial delay (as the Tribunal comments below: see: at [paragraph 115] in applying for protection, the Tribunal does not accept that the applicant has a genuine, urgent or deep personally held fear of persecution in returning to Pakistan at the time of application for this protection. Neither does the applicant have any subjectively held fears of persecution based on his political opinions, imputed or otherwise at the time of decision.

107.   The Tribunal cannot find any objective reasons to accept that the applicant will have a real chance of serious harm based on some political opinion or actions because of his family relationship with his uncle and grandfather or because of any actions or beliefs these individuals had being members of the PPP. The applicant provided no evidence that associated him with the PPP while living in Pakistan. There is no suggestion in this claim that the applicant has ever been involved in sur place any anti-government activities or membership of the PPP. Significantly the applicant has not been a person of any particular interest to the authorities in Pakistan during his two visits to his country of origin and nationality.

108.   Accordingly, while the Tribunal accepts that the applicant’s uncle and grandfather (from the evidence submitted) that both were members of the PPP and had played a significant local role as PPP members, it finds that the applicant does not have a real chance of serious harm arising from their political opinions, imputed or otherwise, either subjectively or objectively understood, if he were to return to Pakistan in the foreseeable future.

109.   In this regard, the applicant does not have a well-founded fear of persecution based on the applicant’s family members – his uncle’s and grandfather’s political opinion or any other related reasons mentioned in s. 5J(1)(a), if he were to return to Pakistan as required by s.36(2)(a).

110.   Based on the same findings that the applicant has not been and remains not a person of interest to the others (involved in politics in Karachi or Pakistan in general) or to the authorities based on  the claimed political opinion of his uncle and grandfather, the Tribunal finds there is no substantial reason for it believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, will face a real significant harm, as required by s.36(2)(aa) of the Act.

111.   Four, the applicant told the Tribunal in his evidence that on two occasions he returned to Karachi, Pakistan. On the first occasion (departed Australia [in] May 2010 and returned to Australia [in] January 2011) was to see his father who had undergone (according to the applicant’s evidence) a serious operation (an operation on his [body part]). The other occasion (departed Australia [in] January 2012 and returned [in] March 2012) was when he returned with his wife to attend his brother’s nuptials. According to the applicant’s evidence at the hearing his first return to Pakistan – he “felt fear” but had to see his father for “compassionate reasons.” On that occasion having remained in Karachi nearly two months the applicant did not experience any direct or indirect threats. On the second visit however, – in order to attend his brother’s wedding, the applicant also travelled with his wife. On that occasion, he told the Tribunal that he had “concealed his real identity by growing a beard” and limiting his public outings. That being so, the applicant told the Tribunal that he received no-number telephone calls on his mobile phone and his wife (one day) was followed by persons she did not recognise. All these happenings caused the applicant to cut his “trip short” and both he and his wife returned to Australia ([in] March 2012). The applicant’s explanation for returning to Pakistan on two occasions and for the time he spent in a city he originally described as fearing for his life and had to leave for a better and safer place lacks substance and credibility in the opinion of the Tribunal.

112.   It should be remembered that a ‘refugee’ is a person who has, as defined in subsection 5J(1)(a) a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ A fear of being ‘persecuted’ is ‘well-founded’ if there is in existence a ‘real chance’ that the applicant will be persecuted: see Chan v MIEA (1989)169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8 and Mc Hugh at 428-9. A ‘real chance’ may be below a 50 percent chance. However, a real chance is not a remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well-founded. The mere fact that an individual claims fear of persecution for a particular reason does not create either the genuineness of the asserted fear or that is ‘well founded’ or that it is for the reason claimed. A fear of persecution is ‘not’ ‘well-founded’ if it is merely assumed or if it is mere speculation. The Tribunal, in the place of decision-maker is not required to make the applicant’s case. Nor is the Tribunal required to accept uncritically any and all the claims and assertions made by the applicant.

113.   The applicant in his evidence admitted to the Tribunal his return to the city of Karachi, Pakistan on two occasions. He chose to return, when he claims harm in Pakistan at the hands of the APM members, he also fears the APM which has metamorphosed into (the even more radical) ‘MQM’ – the ‘All-Pakistan Mohajir Students’ Organisation (the ‘AMPSO’) which operates in  Karachi.[89] The applicant claims to fear harm from the APMSO, the student wing of the MQM because he refused to join in the Party while at University and yet he returned not on one occasion but on two separate occasions to the place of his alleged persecution and harm and remained there on both occasions for a considerable period of time. Indeed, the applicant’s explanations for return are not accepted by the Tribunal as credible. If the applicant as he claimed left Karachi, Pakistan to escape ‘persecution’ or feared ‘harm’ to him and his wife – why return? The Tribunal is of the opinion, that the applicant’s claims about being persecuted or not wanting support or to join the MQM and APMSO were an embellishment of the truth by the applicant perpetrated for the reason of enhancing his claims for protection while Australia and have no basis or substance from his subsequent actions (returning to Karachi on two occasions) or from his evidence. The Tribunal finds and concludes that the applicant was not the subject of persecution as he claimed by MQM or APMSO for not desiring to join them or to subscribe to their political beliefs and platform or to participate in the electoral politics, nor is the applicant persecuted or fear persecution for his political opinion which may differ from that of the APMSO or MQM or for any other reason or reasons provided for in s.5J (1) of the Act.

[89] CISEDBS0AD293, "Pakistan: Stoking the Fire in Karachi", International Crisis Group, 14 February 2017

114.   Fifth, the applicant claimed that his family was threatened. In his evidence at the hearing, the applicant told the Tribunal that his family had been subjected (while he was still in Karachi) to constant intrusions by members of APMSO trying to intimidate him to do their wishes but the applicant provided no in-detail and specific information about such incidents of intrusion of his family’s home. He also provided no information as to the frequency of these intrusions or if any of his family members suffered from harm or was afraid from these invasions of the family home. Again, the Tribunal does not accept these claims as credible. The Tribunal  considers and finds that such claims of the applicant’s family being intimidated, fearful and suffering persecution by continuous home invasions by members belonging to the APMSO as lacking in substance and were provided by the applicant first, to the Department and later to the Tribunal (at the hearing) as an attempt by the applicant to attract the protection obligations of Australia.

115.   Six, the applicant first arrived in Australia in December 2008 but did not seek protection until June 2015 after the Tribunal’s predecessor, the Migration Review Tribunal affirmed the refusal of his student visa, and his Request for Ministerial Intervention was refused. The Tribunal, as did the Department’s delegate has considered carefully the comments of Heerey J in the Federal Court decision of Velauther Selvaduri v MIEA and other [1994] FCA 1105, at paragraph [11] of the decision His Honour states:

The applicant complained of the Tribunal's taking into account the fact that the applicant did not

lodge his application for refugee status until some 20 months after he had arrived in Australia

and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument

and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material.

116.   In Subramaniam v MIMA (1998) VG 310 of 1997, the Court also held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuine depth of an applicant’s fear of persecution.

117.   It would be reasonable, in the Tribunal’s opinion, to expect a person who genuinely feared being harmed upon returning to his country to have sought the protection of Australia at the first opportunity which presented itself to him. That was not the case here. The applicant told the Tribunal (at the hearing) that he ‘did not know about the Protection visa’ and only ‘found out about it’ ‘after a friend told him’. The Tribunal does not accept this justification as proper or truthful as provided by the applicant. The Tribunal finds that the applicant’s delay in seeking protection raises, and places in serious doubt the applicant’s genuineness concerning his alleged fears of harm and persecution – past, present or future.

118.   For the reasons provided above, the Tribunal does not accept that the applicant because of his refusal to involve himself with APMSO while attending to his studies at [University 1], he (or his immediate family members) will encounter any threat or threats from the APMSO or any other associated organisation and their members, if he returns to Pakistan in the reasonably foreseeable future nor would the applicant face persecution involving serious harm from anyone associated with the APMSO or any other associated political organisation or because of his association with his uncle and grandfather because of their political beliefs and political work as members (with positions) of the local Karachi branch of the PPP. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s. 5J of the Act.

119.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. 

120.   Overall, having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection – in s.36(2)(aa). For the reasons given in the proceeding paragraphs of this decision above, the Tribunal does not accept the applicant has substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he (and because of him, his wife and child) will suffer significant harm because he did not wish to be political involved, associated or to assist the APMSO and its affiliated political organisations while attending the University of Karachi or that his refusal to involve himself in politics has made him a person of interest with the local authorities nor that he is in anyway known to have been a supporter or associated with the discredited PPP because of his uncle’s and grandfather’s role in the PPP and their involvement in the PPP’s electioneering at local and national elections.

121.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

122.   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

123.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Vlahos
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…