1727980 (Refugee)

1727980 (Refugee) [2021] AATA 5112 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727980
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nora Lamont
DATE:25 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 October 2021 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – imputed political opinion – former member of Muttahida Qaumi Movement (MQM) – brothers murdered – harm from MQM and their associates – harm from the government – delay in seeking protection – voluntary return to Pakistan – other visa options exhausted – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 2 November 2015 and the delegate refused to grant the visa on 17 October 2017.
Summary of Decision Record
The delegate found that the numerous inconsistencies between the applicant’s behaviour and his claimed fear of harm undermined his credibility, and that his account of his political activities was vague and limited. The delegate was also concerned with the delay in making an application for a Protection visa, particularly as he had visited Pakistan on two separate occasions in 2013, and only made an application for protection when he had no other options for visa applications onshore. The delegate found that his claims to have been targeted for harm were not credible or genuine.
The delegate accepted the applicant’s claim that he was a Mohajir, as his testimony was consistent with his claimed identity.
The delegate did not accept that the applicant was involved in the MQM (Muttahida Qaumi Movement) political movement, stating that they found it unlikely that the applicant had anything more than a passing association with the MQM, that the applicant was not an MQM activist and also found that he did not have an ongoing involvement with the MQM. The delegate also found that there was not an attempted kidnapping of the applicant in 2013, and that his family were not subsequently threatened or harmed.
On 16 September 2021, the applicant appeared before the Tribunal via video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was unrepresented at this hearing and in relation to the current review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant claims to be a Muhajir man born in the Punjab province of Pakistan. He claims that he did not travel to or reside in any other country before arriving in Australia. He identifies as being a Sunni Muslim. He claims to speak, read, and write in the English and Urdu languages, and speak in the Punjab language.
His family consists of his father, mother, [number] brothers (deceased) and [number] sisters who currently reside in Pakistan. He lists his previous employment as a [Occupation 1] and working as a [Occupation 2] whilst in Australia. He completed up to his tertiary education in Pakistan before arriving in Australia on a student visa to pursue tertiary studies.
Country of reference
The applicant provided the Department with a certified copy of his Pakistani passport and Pakistani ID card on application, the original of which was sighted at the Protection Visa interview and satisfied the delegate as to his identity.
In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country and, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).
The following is the migration history of the applicant:

Date

Event Details

12/5/2010

Applicant lodged application for a Student (Class TU subclass 572) visa

19/8/2010

Granted Student visa

[Date]/10/2010

Arrived in Australia

18/1/2012

Granted Student visa

[Date]/10/2013

Departed Australia on Student visa

[Date]/11/2013

Arrived in Australia on Student visa

4/6/2014

Lodged application for Student visa

22/7/2014

Student visa application refused

6/3/2015

Migration Review Tribunal affirmed Student visa refusal

[Date]/3/2015

Lodged Federal Court appeal

14/7/2015

Lodged application for Protection (class XA subclass 866) visa

[Date]/7/2015

Withdrew Federal Court appeal

12/10/2015

Protection visa application found invalid as personal identifiers not provided

29/10/2015

Lodged application for Protection visa

8/1/2016

Personal identifiers provided

Claims

The applicant’s initial written claims for protection, on his first PV application, were summarised in the delegate’s decision, and are extracted below:[1]
[1] Department Decision Record, p.2
·The applicant came to Australia in 2010 to study.
·He fears being killed in Pakistan.
·The applicant was a member of MQM (Muttahida Qaumi Movement).
·In November 2013, during his first visit to Pakistan, some people tried to kidnap him. He did not seek help within Pakistan as he had a valid visa for Australia. The applicant put in an application to the police and flew to Australia after 3 days.
·The applicant flew to Australia. His elder brother left the city. His elder brother is in trouble and trying to leave the country.
·In 2010 one brother was harmed the other one is in trouble.
·The applicant is a member of MQM but the MQM is not supporting people anymore.
·The authorities will not protect him. His elder brother is also seeking protection.
·The applicant’s brother relocated and after a short time he was found.
·The applicant cannot relocate anywhere as it is easy to find someone.
The applicant’s second written claims for protection, on his second PV application were summarised in the delegate’s decision record, and are extracted below:[2]
[2] Department Decision Record, p.3.
·He came to Australia in 2010 to study.
·The applicant returned to Pakistan in October 2013 to see his mother who was ill. During his stay some people tried to kidnap him but the applicant was able to escape. They tried to kidnap him because he is an MQM member.
·He has lost his elder brother and cousin. They were members of MQM.
·The MQM warned the applicant that his life is in danger. He came to Australia to save his life. A Student visa was his only option for getting out of the country.
·If the applicant goes back to Pakistan, he will be killed like others who lost their lives.
·No one knows who is killing MQM people.
·After people tried to kidnap the applicant, he contacted the police, but they didn’t respond.
·He is not safe in any part of Pakistan because the MQM is not in power in any part of the country.
·The applicant will be killed if he returns because MQM workers are being killed on a daily basis.
·Because he belongs to MQM the authorities will not protect him.
·His brother tried to relocate to escape harm but was unsuccessful and lost his life.
The applicant attended an interview before the delegate of the Department on 29 August 2017. He made additional and amendments to his previous claims as below:[3]
[3] Department Decision Record, p.4.
·The information provided with his Australian visa applications is correct.
·He has lived in Karachi since he was about one year old.
·His parents moved back to the Punjab about six months ago. They are living in a place called [Location 1].
·The applicant has [number] sisters and one brother. [Number] sisters live with his parents. The other [number] sisters are married and live in another village in the Punjab. His brother, [Brother A], also lives in the Punjab. He has moved 3-4 times in the Punjab.
·In 2010 the applicant’s [brother], [Brother B], was killed because of his affiliation with the MQM.
·Because of his links to the MQM the applicant did not tell anyone he was returning to Pakistan in 2013. He spent most of his time with his mother.
oOne evening he was coming from [Location 2]. When close to a tea stall three people asked the applicant to sit in a car. He did not know the men. He pushed them and ran away. They fired shots in the air.
oA military vehicle arrived quickly but by then the people had run away.
oThere was no number plate on the car. Such cars belong to the military or agencies.
oThe applicant walked to a busy market area and took a tuktuk (3-wheeler) to a friend’s house. He stayed there all night.
oFor a couple of days, he did not contact his family.
oFor his few remaining days in Pakistan he stayed at different friends’ houses. His parents bought his passport and ticket to his friend’s house.
oHis father initially reported the applicant missing to the police. The applicant’s father was told about the attempted kidnapping 2-3 days after it occurred and two days after that he went to the police. The applicant did not go to the police because he was scared.
·These men attempted to kidnap the applicant because of his involvement in the MQM. There is no other reason for the applicant to be kidnapped as he does not have links to anyone else.
·The applicant was afraid to return to Pakistan in 2013 but did not take any actions to keep himself safe.
·The applicant is Mohajir. They have been left behind due to discrimination and the quota system.
·The applicant did not make a decision to join the MQM, his father joined to get his rights.
·The applicant started being involved in the student wing of the MQM at college in 2004/2005. The whole family was involved in the election campaign. Everyone in his family who is Mohajir was involved in the MQM.
·He was never involved in the armed or militant wing of the MQM.
·Everyone knows he is Mohajir and, therefore, will know he is involved in the MQM.
·[In] May 2012 his cousin was killed because of his involvement in the MQM. The applicant’s brother was killed [in] January 2010 because of his involvement MQM. His brother was a victim of target killing in Karachi.
·Apart from the attempted kidnapping, the application has never been harmed at any other time because of his MQM activities.
·The applicant first decided it was unsafe for him to live in Pakistan when his brother was killed.
·In early 2017 his father received a call stating that wherever you go we will find you.
·His father was harmed in 2015, before July, when people came asking for the applicant and beat his parents.
·He cannot say who will harm him. At the moment police are picking people up. It used to be members of the Pakistan People’s Party (PPP). Police work for the politicians.
The applicant provided a further statement in relation to his claims for protection on 10 September 2021. In that statement, the applicant reiterated his claims as above, but provided some additional context and claims as extracted below:
·The applicant is a [age]-year-old Pakistani citizen who was born and brought up in a politically influenced suburb in Karachi city where he was advised on several occasions to serve the most effective political group, known as MQM, as an active member to reserve security and well-being for himself and his family since it was famous for taking care of its comrades when it comes to getting good education and government jobs.
·The applicant, after assisting the group for long, realised that his underprivileged situation could not be solved by associating himself with the people he was serving. So, he decided to take this brave and wise decision to bid adieu his political group, his friends, his homeland and above all his dear family and fly to Australia to seek comparatively better education, life standards and his future.
·Nevertheless, just he was trying to get on board to take off [in] September 2010, he was unfairly off loaded from his flight by the anti-human trafficking agency, FIA, who turned out to held him responsible for political incidents and chaos in the city and force him to live his poor predicament. However, the applicant managed to prove himself innocent in the trial lodged to 23 days and finally succeeded in flying to Australia [in] October 2010.
·Although, the applicant has resided in Australian since then, he has been aware that his life is never going to be the same if he goes back to his home country. During his very first and the only visit to Pakistan [from] October 2013 [to] November 2013, where he wanted to console his sick mother and unite with his family members at the time of difficulty and need, the applicant only stayed in Karachi for a week and had to shift his entire family to a small village of Punjab district in fear of losing them and avoid any conflicts. The applicant, while in Karachi, came across several incidents of death threats along with his family members from his previously left party MQM, the political members continued to pay him visits to pursue him back to the group and start serving them again and in case he refused to do so, would slay his family and himself which eventually made him realise that fleeing away from his vicinity was never going to cut his tied from MQM.
·Despite leaving Karachi for good, the elder brother of the applicant, [Brother A], who was also sponsoring the study and living expenses of the applicant, had to keep hiding and changing his dwellings due to the oncoming death threats. Sadly, he was stabbed to death in a cold-blooded murder [in] March 2019 and left the applicant the only male member in the entire family after his father.
·The one after another miserable murders of the applicant’s brothers have brought him troublesome state and verify that his political constrains in his country leave him no choice but to keep himself far away from his Pakistani locality and at least save his own skin. During this sorrowful and distressed time of physical hardship and mental affliction, the applicant has witnessed his beloved and supporting brothers die and his family living in anguish only because of his association with MQM. It’s a shame that the ministry of home affairs disqualified the application lodged on humanitarian grounds and objected applicant’s association with MQM while, he lost his beloveds and circumstances substantiate that his life also exceedingly imperil if he chooses to go back his home country.
·The delay in lodging the protection visa occurred due to already holding a student visa subclass 572 and lack of adequate information about protection visa.
Tribunal Hearing
At the Tribunal hearing the applicant stated he finished year 11 and year 12 but that it took him longer than normal. He said he did a [Qualification 1] and a [Qualification 2] as well. His friends’ brother was in Australia and advised him to come here.
In 2013 he went back to Pakistan to visit as his mother had [specified condition]. His parents are no longer in Karachi they have moved back to their village. The Tribunal asked why he had a student visa refused in 2014 to which the applicant stated he was not able to complete his IELTS. He then applied for a review at the Tribunal which was affirmed.
The Tribunal asked him about his Muhajir ethnicity, and he said his maternal and paternal grandparents migrated in 1947. The Tribunal asked if he was still a member of the MQM, but he said he is not currently a member. The applicant said he was in the APMSO a branch of the MQM which was mostly students, he said that this branch did most of the political work. He was in unit [number] and the group and we were young, and they organised rallies for Altaf Hussain, we were considered as a minority at the time.

The Tribunal asked why it was important for him to join? He said when you are young, we don’t know as much. Because we are Muhajir we never got integrated into society and you were always called out as a Muhajir.
The Tribunal told the applicant it was there understanding the MQM controlled Karachi and were quite violent. [4] The applicant stated that it was a myth that the MQM controlled Karachi for a long time there were lots of other missing people. It seemed like a civil war-I grew up in that city there has always been unrest with the Army walking around the city.
[4] Thenewhumanitarian.org
The Tribunal asked if he had proof that he had been a member of MQM? The applicant said that in 2010 when he came to Australia, he didn’t bring anything with him. In 2015 the MQM offices were destroyed. He was part of unit [number] and they destroyed all the documents. They cannot give him any evidence.
The Tribunal asked what happened that made him no longer want to be a member of the MQM? He said that many years ago we moved to Karachi because we were Muhajir and his brother was receiving threats. He didn’t want any part of the MQM. The Tribunal asked him if he had followed the MQM and their split when Altaf Hussain conspired to kill Imran Farooq? [5] The applicant said what your saying MQM has lots of pieces and MQM in Karachi this is also true. But the thing is once you join them you can’t disassociate with them you just have to remain in it. He himself just kept trying to move, he paid the price for it.
[5] BBC.com
The applicant said his brother was murdered in 2010 and his cousin was murdered in 2012. Then in 2019 [another] brother. The Tribunal asked him to explain what happened and he said his brothers were active in their approach and it wasn’t just the MQM there were lots of people being killed. He reiterated it was a myth that the MQM and PPP were in charge of Karachi.
He said they reported his brother’s death to the police but there was never any outcome. He was in his own area and it was a targeted killing. It was reported as no outcome and the same thing happened to his cousin in 2012. He said his cousin was shot in the head by the PPP they executed him. His brother had lots of threats on his life, so his father told him to come back to the village and he was stabbed to death.
The applicant said his father got calls and threats not to call the police. He wanted his son to go and get out of the country. He said his father has had his phone number for a long time and they can find anyone. He said his father does not involve him details as he doesn’t want him to be harmed. The Tribunal asked if his father was ever a member of the MQM himself. The applicant said no he was never an actual member he did support them. Because you are Muhajir then you support them. His father has received phone calls whilst he was living in Karachi and they came to his house looking for his brother and it got physical. He said his dad is ex-Army and he is very secretive and doesn’t give him much information.
The Tribunal asked why it took so long like 5 years for him to put in his protection visa application? He said when he first came here, he had no intention of claiming asylum he didn’t even know he could. But as the situation evolved, he became more aware.
The applicant provided the Tribunal with a document from FIFA stating he was pulled off an airplane when leaving Pakistan as someone said he had a fake visa.[6] The Tribunal had not seen this document. The applicant said that in his original claims a friend helped him he had advised him to put it in the application. He said it was a mistake on his part as he didn’t have a lawyer. He said they took him off the plane and they sent his documents away and there was a register he had to check each day and when they were satisfied that he had a visa they let him go. The applicant said it was the PPP who did this.
[6] AAT Folio
The applicant said that the FIA officer mentioned he belonged to the PPP and he didn’t like non Sindh’s and they asked if he was born in the Punjab to which he said no he was born in Karachi and they assumed my visa was fake by looking at me.
The Tribunal put to the applicant that in his original claims he said he left Pakistan because MQM members were getting killed and the authorities will not protect him. He said yes that was true at the time but its been 11 years and things have changed there are people getting killed and there is no justification for it. Once you are a part of the group, once you are in the MQM you have to have a role in a political party but later on you realise they consider you to be property. The Tribunal asked which one was it? The applicant said it was a complicated situation he isn’t a member anymore and the unit he was in was dissolved and he doesn’t want to be a part of it.
The applicant said that it’s a complicated situation when you tell them that you don’t want to be a part of them, they threaten you and now the threat is from the MQM. You don’t even have to actually tell them you don’t want to be part of them like his brothers they just wanted out. He has had to change his social media and phone number. His brothers knew MQM was violent and disassociated himself.
The Tribunal asked about in his original claims he said in 2013 someone tried to kidnap him, and he said we didn’t know who it was he had n contact maybe it was the MQM. The Tribunal asked why he said it was a military vehicle then? He said in general if any vehicle doesn’t have a number plate on it the they assume military that is why he said that.
The applicant said that when he was leaving Pakistan, he had all the paperwork and they stopped him, there are no regulations they do whatever they want. His whole family went into hiding and they still found them. He cannot relocate as his brother did and they still found him and killed him.
Findings
Despite some inconsistencies in the applicant’s written and oral evidence the Tribunal found the applicant to be honest and open about his past life in Pakistan. After the Tribunal hearing there was more clarity around the changing nature of the applicant’s dealings with the MQM.
The Tribunal accepts the applicant is a Mohajir and was a member of the MQM (Muttahida Qaumi Movement).
It appears from what the applicant has explained he was a member of the MQM, but they are no longer a political party he wishes to be associated with. Further, the Tribunal considers that two of his brothers have been murdered due to their involvement with the MQM. It also appears that things have settled down in Pakistan recently as the MQM has disintegrated.
However, the Tribunal has taken into consideration all the applicants claims cumulatively and finds the applicant will not be able to either go back to Pakistan as a former member of the MQM as he may be considered to be a threat and also that the MQM will threaten the applicant.
The Tribunal accepts that the applicant was a member of MQM and that as part of this organisation he became a target of the government and now a target of the MQM. Further, the Tribunal accepts his [brothers] were murdered and that he cannot return to either his original home area or to his provincial home area.
The Tribunal accepts that when the applicant returned to Pakistan in 2013 someone or some people were after him.
The Tribunal finds the applicant’s political opinion and his imputed political opinion to be the refugee reason and the applicants claims of fear and persecution fit within his political opinion and his imputed political opinion.
Country Information
The Tribunal has regard to current country information:
The steady migration of Pashtuns from Khyber Pakhtunkhwa and the former FATA to Karachi has reportedly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM, see Mutahidda Qaumi Movement), the Sindh-based Pakistan People’s Party (PPP), the Pashtun-based Awami National Party (see Awami National Party (ANP)), and the TTP. In Balochistan, separatist groups such as the BLA have targeted and killed ethnic Punjabi settlers and others as part of their campaign for independence.
Mutahidda Qaumi Movement (MQM)
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.
In 2013, the Rangers – a federal, paramilitary force - (see Police, Frontier Corps and Rangers) 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-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.
In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address from London to MQM supporters on a hunger strike in Karachi. Altaf allegedly urged supporters to attack media outlets that did not give MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. The attack and subsequent violent clashes with police killed one person and injured several others. Rangers sealed MQM’s offices in Karachi, launched a treason case against Altaf, and arrested five MQM leaders in Karachi.
Anti-Pakistan rhetoric in Altaf’s speech led to senior MQM leaders to declare they would no longer answer to Altaf and run the movement from Pakistan. The party split into two factions, one loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based party officials (MQM-Pakistan). The government formally recognised MQM-Pakistan (MQM-P) and its former leader, Farooq Sattar. Sattar was replaced by Khalid Maqbool Siddiqui as the leader of MQM-P in February 2018.
DFAT assesses that MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces. [7]
The Muslims who chose to migrate to Pakistan after August 1947, did so out of fear of being targeted in post-independence India. Their struggle for identity already existed when they were in India and, unfortunately, continued for generations after they moved to Pakistan. The Mohajirs initially constituted a privileged, elite and educated class, but their standing amongst other ethnic groups in Pakistan diminished over the decades. The stirrings of a Mohajir consciousness began in the early 1970s, prompted by the government policies that negatively affected their education and employment opportunities in Sindh. Over the years, demographic changes, ethno-political conflicts, militant and sectarian groups, and vested political interest groups coloured the Mohajirs’ view of their place in Pakistani society. The MQM emerged as a party that claimed to represent Mohajir grievances but soon became a criminal enterprise, diluting the legitimacy of the Mohajir cause.[8]
Kamal warns PPP to halt ‘Anti-Karachi, Anti-Muhajir’ politics
Pak Sarzameen Party Chairman Mustafa Kamal on Saturday said, “When we can fight and eliminate the evil presence of RAW from Karachi, the economic hub of Pakistan, so shall be the fate of PPP-led prejudiced provincial government.” Kamal warned Pakistan People’s Party to stop its anti-Karachi, and anti-Muhajir politics under the garb of so-called democracy, threatening to topple them through public power, if it did not end politics of hatred, and decades-long public deprivation. He said that PSP’s untiring four-year struggle for the restoration peace and tranquility in Karachi by eliminating RAW was to ensure rule of law with empowering people through their genuine and sincere leadership, not to hand over Karachi’s control from RAW to Asif Ali Zardari. “PPP has practically converted Sindh into Sindhu Deshand Zardari’s personal dynasty. People from the rest of country will soon need visa to come to Sindh. Those who can sell children’s medicines to mint undue money, can also be used against the country for dollars. It makes no difference for them to be misused by either India or the United States or Israel. There is no doubt that the PPP is destroying Pakistan economically from within.” He said this is an enemy agenda and added that despite everything being exploited by Sindh government, the federation and the state are silent. Every child of PSP will protect every inch of Pakistan, especially Sindh province, till the last drop of their blood. The PPP calls itself a democratic party but what it is doing in the name of democracy is very unfortunate. It doesn’t devolve powers to the grass root level, neither it gives PFC share to district level despite receiving NFC share from the federation. Kamal posed question as why not one should celebrate joy, and distribute sweets over the dismissal of this corrupt PPP government at the hands of an undemocratic force. “Curse on such democracy in which drinking water is not available, children do not get medicine and education, people are unemployed, genocide is committed. At the behest of which undemocratic force, PPP is making hydrants and selling water to them for billions?” The press conference was also attended by President PSP AnisKaimKhani and members of the Central Executive Committee and the National Council. [9]
[7] DFAT Country Information Report Pakistan 20 February 2019
[8] >
Country information highlights the unstable nature of politics and political parties in Pakistan and how MQM members were killed and how MQM itself has become split and violent. This backs up the applicant’s contention that he cannot return to Pakistan out of fear of his former membership with the MQM.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal accepts that the applicant fears being persecuted for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s.5J(1)(a) if he were to return to Pakistan, now or in the foreseeable future. Specifically, the Tribunal finds that the applicant’s political opinion and imputed political opinion means he would face a real chance of serious harm from the MQM and their associates and from the government. The Tribunal is satisfied that this would be the essential and significant reason for the persecution and involves serious harm and systematic and discriminatory conduct.
The Tribunal accepts that this chance of harm exists throughout Pakistan, such that relocation would not mitigate it, Moreover, it is not satisfied that there are effective protection measures available to the applicant to avoid this harm.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has a protection obligation under s.36(2)(a).
Having concluded that the applicant meets the refugee criterion in s.36(2)(a), it is unnecessary for the Tribunal to consider the alternative criterion in s.26(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nora Lamont
Member

Document List – 1727980 – [the applicant]
Tribunal File –
1. Death Certificate of [Brother A]
2. Copy of applicant’s Pakistani Passport, expiry [date in] 2012
3. Applicant Statement (undated) received 10/9/2021
4. Office of the Additional Director FIA, Anti Human Trafficking Circle Karachi – [Qualification 1], Mark Sheet/Degree are genuine, dated [in] 2010
Department File – CLF2015/41681
1. Notification of refusal of application for a Protection (subclass 866) visa, dated 17/10/2017
2. Decision Record dated 17/10/2017
3. Copy of Department Interview audio
4. Copy of applicant’s Pakistani passport, expiry [date in] 2012
5. National Identity Card of applicant
6. Screenshots of applicant’s ICSE records
7. Form 1005 – Application for a bridging visa, dated 20/12/2015
8. Letter from DIBP regarding litigation debt, dated 16/12/2015
9. Tax Invoice – [Telecommunication company] (in applicant’s name), dated 9/12/2015
10. [Energy company] – Electricity bill (in applicant’s name) dated 3/12/2015
11. Quarterly PAYG instalment notice for quarter July to September 2013
12. [Bank 1] Credit Card statement – 10/11/2015 to 9/12/2015
13. [Mobile service provider] bill dated 7/12/2015
14. [Water] bill dated 21/11/2015
15. [Bank 2] Account Summary dated 11/12/2015
16. Form 1005 – Application for a bridging visa, dated 16/11/2015
17. [Bank 1] Credit Card statement dated 10/2015
18. [Bank 2] Account summary dated 11/11/2015
19. Photocopy of applicant’s Pakistani passport, expiry [date on] 2023
20. Form 866 – Personal details for each person included in this application, dated 29/10/2015
21. Form 866B -Persons included in this application, dated 25/10/2015
22. Notification of invalid application for a Protection (subclass 866) visa, dated 12/10/2015
23. Form 1005 – Application for a bridging visa, dated 31/8/2015
24. [Bank 1] Credit Card statement, dated 9/8/2015
25. [Bank 2] Account Summary, dated 10/7/2015
26. Form 866C – Personal details for each person included in this application, dated 13/7/2015
27. Form 866B – Persons included in this application, dated 13/7/2015
Department File – [file number]
1. Form 157A – Application for a student visa, dated 5/5/2010
2. Form 1282 – Australian values statement for temporary visa applicants, dated 5/5/2010
3. Form 1221 – Additional personal particulars, dated 5/5/2010
4. Form 80 - Personal particulars for character assessment, dated 5/5/2010
5. Form 956 – Appointment of a migration agent or exempt agent or other authorised recipient dated 5/5/2010
6. [Education service provider] Offer for Admission, dated 26/4/2016
7. Photocopy of applicant’s Pakistani passport, expiry [date in] 2012
8. Applicant’s IELTS results, dated 27/3/2010
9. Form 54- Family Composition
10. Supplement for Students form dated 5/5/2010
11. Submissions by [specified service provider] on behalf of applicant:
Department File – [file number]
1. MRT Decision Record for Case [Number] dated 10/3/2015
2. Notification of Oral Decision dated 6/3/2015
3. Case Notes from ICSE
4. Department Decision Record to refuse TU-572 visa dated 22/7/2014
5. Notification of decision to refuse visa dated 22/7/2014
6. Form 1026i – Limitations on applications in Australia
7. OSHC Overseas Student Health Cover – Policy Certificate valid until 10/7/2015
8. Translation of National Identity Card from Government of Pakistan
9. Affidavit of Support from [Brother A], undated
10. [Bank 3] Bank Account Balance dated 1/1/2014-27/6/2014
11. Booking for IELTS test
12. Email from applicant to Department of Immigration dated 2/7/2014
13. Request Checklist and Details – Department of Immigration and Border Protection
14. Request for more information for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa, dated 6/6/2014
15. Notification of grant of a Bridging visa, dated 4/6/2014
16. Bridging Visa Grant Notice, dated 4/6/2014
17. Acknowledgement of application for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa, dated 4/6/2014
18. Application for Student (Temporary) Visa dated 4/6/2014
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.
…

[2021] AATA 5112

25 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Appeal

Date	Event Details
12/5/2010	Applicant lodged application for a Student (Class TU subclass 572) visa
19/8/2010	Granted Student visa
[Date]/10/2010	Arrived in Australia
18/1/2012	Granted Student visa
[Date]/10/2013	Departed Australia on Student visa
[Date]/11/2013	Arrived in Australia on Student visa
4/6/2014	Lodged application for Student visa
22/7/2014	Student visa application refused
6/3/2015	Migration Review Tribunal affirmed Student visa refusal
[Date]/3/2015	Lodged Federal Court appeal
14/7/2015	Lodged application for Protection (class XA subclass 866) visa
[Date]/7/2015	Withdrew Federal Court appeal
12/10/2015	Protection visa application found invalid as personal identifiers not provided
29/10/2015	Lodged application for Protection visa
8/1/2016	Personal identifiers provided