1808211 (Refugee)

[2024] AATA 3368

1808211 (Refugee) [2024] AATA 3368 (20 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Tanveer Singh

CASE NUMBER:  1808211

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Member Nathan Goetz

DATE:20 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 27 February 2018 refusing to grant the applicant a protection visa.

Statement made on 20 May 2024 at 4:47pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – ethnic group – Urdu speaking Muhajir – religion – a Sunni Muslim – political opinion – a member of the MQM – departure from Pakistan suggests that he was not a person of adverse interest to the authorities – applicant is not a genuine supporter of the MQM – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

2. The applicant was represented in the review by registered migration agent 1173217.

   BACKGROUND

3. The applicant identifies as a male citizen of Pakistan presently located in Australia.

4. On 23 March 2014 the applicant was offshore and applied for a student visa to come to Australia. On 17 April 2014 the visa was granted. The applicant arrived in Australia holding that visa on [date] May 2014. On 22 September 2016 the applicant’s student visa was cancelled under s 116(1)(b) of the Act because the applicant failed to maintain enrolment in a registered course.

5. On 22 September 2016 the applicant applied for the protection visa. On 15 September 2018 the applicant participated in an interview with the delegate. On 15 February 2018 the applicant participated in an interview with the delegate. On 27 February 2018 the delegate refused to grant the applicant the protection visa. On 26 March 2018 the applicant applied to the Tribunal to review the decision.

6. On 25 July 2023 the Tribunal wrote to the applicant and advised that his review was being prepared to be allocated to a Member to conduct the review. The applicant was directed to complete and return a pre-hearing invitation form. On 26 July 2023 the applicant responded with a form appointing the current representative and attached a request for access to documents under the Freedom of Information Act 1982 (Cth). The documents requested were ‘both files with complete documents from DHA and AAT in regard to case number 1808211 / [number]. On 31 July 2023 the Tribunal provided the representative with the Tribunal’s file.

7. On 2 August 2023 the Tribunal wrote to the applicant and invited him under ss 425(1) of the Act to appear at a Tribunal hearing scheduled for 10:00am on 18 August 2023. The hearing invitation advised the applicant that the Member had considered the material it had but was unable to make a favourable decision on this alone. Accordingly, the applicant was invited to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.

8. On 2 August 2023 the representative wrote to the Tribunal and requested that the Tribunal hearing be postponed because the applicant had not yet been provided with the Department file [number]. It was submitted that the documents on the Department file were needed to assist the applicant. It was submitted that access to the documents would accord the applicant procedural fairness. It was submitted that the applicant did not have the documents available to him. It was requested that the Tribunal hearing be postponed until the file was received from the Department.

9. On 3 August 2023 the Tribunal wrote to the applicant via the representative and advised that the request for postponement had been refused and that the Tribunal hearing would occur on 18 August 2023 as planned. The Tribunal decided to refuse the request because the Tribunal was not confident that the relevant files would not be provided to the representative prior to the scheduled Tribunal hearing.

10. On 18 August 2023 the applicant appeared at the Tribunal hearing, together with the representative. At that hearing, the Tribunal was told that the Department file had still not been provided to the representative. It was requested that the Tribunal hearing be postponed for the Department file to be provided. The Tribunal agreed to this request, and the Tribunal hearing was postponed to 25 August 2023 so the Department file could be provided. The Tribunal arranged for Tribunal staff to request the Department prioritise the request so the file could be provided to the applicant.

11. On 25 August 2023 the applicant and representative appeared at the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

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

13. 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.

14. 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).

15. 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.

16. 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.

17. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

    CONSIDERATION AND FINDINGS

18. The issue in this case is whether the applicant is a ‘refugee,’ or a person who meets the requirements for ‘complementary protection,’ or whether the applicant is a person who is a member of the same family unit as a person who is either a ‘refugee’ or meets the requirements for ‘complementary protection.’

19. The Tribunal considered all the material available to it, including the applicant’s oral evidence provided to both the delegate and the Tribunal. The Tribunal considered the applicant’s claims individually and cumulatively.

20. At the Tribunal hearing, the Tribunal was told that the protection claims were contained in the material provided so far, and there were no new claims to be provided at the Tribunal hearing.

21. The issue in the review is whether the applicant satisfies the criteria for the grant of the protection visa.

22. If the Tribunal finds that the applicant satisfies the criteria for the grant of the protection visa, the correct or preferable decision is to set aside the decision of the delegate and affirm the decision under review.

23. If the Tribunal finds that the applicant does not satisfy the criteria for the grant of the protection visa, the correct or preferable decision is to affirm the decision under review.

24. For the following reasons, the Tribunal affirms the decision under review.

    Identity, residence, family and country of reference

25. According to the protection visa application form, the applicant was born on [date] in Karachi, Pakistan. He is a Urdu speaking Muhajir and a Sunni Muslim. He claimed to be a citizen of Pakistan at birth and that he was not a citizen or national of any other country. He also claimed that he did not hold citizenship or nationality of any other country and did not possess the right to enter and reside in any other country.

26. In support of his identity, he provided a copy of the first page of a Pakistan passport issued in the name of the applicant on [date] 2013 and valid for 10 years. He also provided a copy of a Pakistan national identity card with an accompanying translation in his name.

27. Based on the identification documents, the Tribunal is satisfied that the applicant is a male citizen of Pakistan.

28. In the absence of any evidence that the applicant is a citizen of any country other than Pakistan and in the absence of any evidence that the applicant has the right to enter and reside in another country, the Tribunal is satisfied that the country of reference for the purpose of the visa application assessment is Pakistan.

29. The protection visa application form detailed that since December 2009 until 2016, the applicant resided at an address in Karachi, having previously lived at another address in Karachi. As the applicant was in Australia from 2014, the Tribunal understands the address in Karachi to be his address until 2016, when he lodged his protection visa and claimed that he could no longer return to Pakistan from Australia.

30. According to the protection visa application form, the applicant is the only person included in the visa application. There were no members of the same family unit in Australia. The applicant detailed that he had a father, mother and two sisters who were citizens of Pakistan and residing in that country.

31. The applicant claimed in the protection visa application form that he was raising his own claims for protection. He did not claim to be a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

32. At the Tribunal hearing, the applicant confirmed he did not have any family in Australia and that he was not presently in a relationship with anyone.

33. Based on the fact that the applicant did not claim to be a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act, and in the absence of evidence to the contrary, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

    Mandatory considerations

34. 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.

35. The most recent DFAT Country Information Report on Pakistan is dated 25 January 2022.

    Application for a student visa and cancellation of that visa

36. On 24 March 2014 the applicant was offshore and applied for a student visa. In that form, the applicant was directed to detail a statement setting out his reasons for undertaking his intended course(s) of study. The question directed the applicant to include; his reasons for choosing to undertake the course of study specified in his application; his reasons for choosing his education provider; his reasons for choosing study in Australia rather than his home country; the relevance of his course of studies to his academic and/or employment background; and the relevance of his course to his future career/educational plans.

37. The specified courses contained in the visa application form were:

    ·     A General English course at the [Institute 1] between 19 May 2014 and 19 June 2014 for which he was enrolled;

    ·     A [degree] at the [Institute 1] which an intended commencement date of 14 July 2014 and completion date of 23 October 2015,

    and

    ·     A [degree] at the [Institute 1] with an intended commencement date of 9 November 2015 and completion date of 31 July 2016.

38. The form indicates that the applicant had enrolled in the first course, but not the second or the third courses. He included letters of offers for the courses for which he had not yet enrolled.

39. In the statement provided by the applicant in support of the reasons for undertaking the course and the intended courses in Australia, the applicant detailed that his courses would facilitate him to grow and return to Pakistan and start a job with a ‘higher scale’ with a ‘handsome package.’ The applicant claimed that completing an international and industry orientated course would give him skills to deal with [specified] issues on an international standard so he could focus his work as a manager in [a] sector and many other leading organisations in Pakistan.

40. He also detailed that as the courses he intended to enrol in were not taught in Pakistan, he would become one of the best financial professionals in Pakistan. The applicant detailed that after completing all his courses in Australia, he would ‘look up’ the most senior level in organisations such as [deleted]. The applicant claimed that the completion of his degrees would impress employers in Pakistan. At the time of the visa application, the applicant claimed that he was employed by [Company 1] in Karachi as an [occupation]. He attached a letter from that organisation confirming his employment at that organisation from 1 November 2011 to date.

41. Nowhere in that visa application form does the applicant indicate that a reason for him seeking to study in Australia is because he has experienced harm in that country and that he needs to be outside Pakistan for his personal safety. Nowhere in that visa application does the applicant indicate that he will not return to Pakistan once he is in Australia. In fact, the applicant expressed the contrary intention, writing about how completion of his courses would in effect, make him a desirable candidate for employment in Pakistan.

42. At the Tribunal hearing, the applicant confirmed that he did not mention experiencing any harm in Pakistan in his student visa application form. The applicant attributed this to his desire to start a fresh life and that he wanted to study. He told the Tribunal that he did not deem it necessary to talk about what happened to him in Pakistan because the student visa had nothing to do with starting a new life. The Tribunal noted to the applicant that he had declared in the student visa application a desire to return to Pakistan, which appeared to be at odds with his protection claims detailed later in this decision record. The applicant responded that he had ‘no idea what the political situation would be’ in Pakistan and thought that everything would be alright, until the situation got ‘worse and worse’ with people the applicant was in contact with in Pakistan being killed.

43. The applicant told the Tribunal that he stopped study in Australia in either February or March 2015. The cancellation decision reflects that the applicant was not enrolled in a course of study from 1 July 2015. Noting that the timing of the applicant’s protection visa application, namely the same day his student visa was cancelled, the Tribunal asked why the applicant did not apply for a protection visa when he stopped studying in February or March 2015. The applicant said that he did not have a plan to stop studying but ‘the situation changed dramatically’ and questioned whether he should continue with his studies or save his life.

44. The applicant also said that he had no idea he could apply for a protection visa while on a student visa and that he applied for the student visa after receiving guidance from people. The Tribunal asked why the applicant believed that he could not apply for protection while holding a student visa and he said that he ‘did not have enough information’ and he thought that he may be deported and be harmed in Pakistan. He told the Tribunal that he information the Department that he was no longer enrolled when he applied for the protection visa.

    Protection claims raised in the protection visa application form

45. In the protection visa application form, the applicant declared that he came to Australia on a student visa and provided the date of issue and the date of expiration being [date] September 2016. He did not declare that the student visa had been cancelled 8 days earlier on 22 September 2016. He indicated that from May 2014 to September 2015 he was undertaking a [a course] at [Institute 1], but he withdrew.

46. In the protection visa application form, the applicant indicated he was raising his own protection claims. He wrote that he came to Australia to study and to escape from ‘all the trouble in Pakistan.’ The applicant wrote that he ‘looked through laws’ to find out where he ‘would be safe from extra judicial killing.’

47. The applicant declared that he had experienced harm in Pakistan. He wrote that in 2012 he was abducted by a paramilitary force and unlawfully arrested. He claimed he was detained for 3 months and was physically and mentally tortured throughout that detention.

48. He claimed that the paramilitary forces ‘forced him to accept fake murders’ and ‘pressured him to give statements’ against ‘his leadership.’ He identified that ‘his leadership’ was the Muttahida Qaumi Movement (MQM), a political party in Pakistan. He told the delegate that he joined the organisation in 2002, which was consistent with his written claims.

49. The applicant told the delegate that in Pakistan he was in ‘middle leadership’ and received things from overseas. He claimed to be the face of the MQM in Karachi. He was appointed as a ‘middle figure’ in 2013 and received directions. Despite his appointment, he had no letter to confirm this role, as disclosed to the delegate. He claimed he would coordinate with the media for protests.

1. According to the DFAT Country Information Report:

2. The Mutahidda Qaumi Movement (MQM) is a Karachi-based secular political party which advocates for the rights of Muhajirs (Urdu-speaking Muslim migrants from India and their descendants). Formed in 1984, the MQM rose to become a major political force in the 1980s and 1990s. During this period, MQM was involved in widespread political violence in Karachi as its militants fought government forces, breakaway factions and militants from other ethnic political movements.

3. The US Department of State, Amnesty International and others accused MQM of assassinations, torture and other abuses. In September 2020, two MQM workers were sentenced to death for starting a fire at a garment factory that killed over 260 people in 2012, after the factory owner refused to pay a bribe. In 2016, MQM leader Altaf Hussein made a speech from London that allegedly spurred violence in Karachi and resulted in a split between MQM-London and MQM-Pakistan. Soon afterwards, the paramilitary Rangers commenced operations in Karachi that significantly reduced political violence, but which MQM claims involved arbitrary arrests, extrajudicial killings and enforced disappearances of its members. These abuses allegedly still occur. In June 2020, an MQM worker and a member of a Sindh nationalist group were found shot dead in Karachi. The MQM worker had gone missing in 2019. In December 2020, an MQM worker who went missing four years earlier was found dead on the outskirts of Karachi. His body was covered in bruises. The MQM has also been targeted by the Tehreek-e-Taliban Pakistan terrorist group because of its secular ideology and support for the US-led ‘War on Terror.’

4. DFAT assesses MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. 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.

5. The applicant claimed in the protection visa application form that he was investigated by the rangers, but was found not guilty. Despite this, he was kept for three months to show other workers of the MQM what would happen to them. The applicant wrote that he was released after three months and found himself blindfolded and on a railway track, and he feared he would be shot in the head. He ran and fell down multiple times. The applicant wrote that he did not think the authorities in Pakistan could help him because ‘every institution is monitored and controlled by the Pakistan Army.’ He declared that he did not move, or try to move, to another part of Pakistan because ‘when the State is after you, there is no mercy.’

6. The applicant wrote that on 30 April 2014 he was with a colleague at his apartment when rangers invaded the apartment. He identified the colleague as a popular figure in the MQM. The applicant claimed that he recognised them as the rangers who took him in 2012 but managed to escape. The applicant claimed that his colleague was later found dead. He escaped Pakistan a month later. The applicant clarified at the delegate interview that this event happened on 1 April 2024 and not 30 April 2024 as he claimed in the written statement.

7. During his time in Pakistan, the applicant claimed that he had a variety of employment. According to the form, he worked as follows:

   ·     From June 2003 to November 2006, he worked at a [workplace]

   ·     From November 2006 to August 2010, he worked at a [company]

   ·     From September 2010 to April 2014, he worked on a [project].

8. He did not claim in the protection visa application form to have been employed for the business detailed in his student visa application form. At the interview with the delegate, he claimed that he worked at t[a workplace] while studying. He then started working at a [company] and finished that job in 2010. He said that he then undertook [specified] work for the government for one year from 2011 to 2012, as well as working for the [company]. When the delegate noted the applicant’s employment in the student visa application form was not declared and appeared inconsistent with the form and the applicant’s oral evidence, the applicant suggested that [Company 1] was the [company]. When the delegate pointed out that the applicant said that he worked at a [company] and had finished that job in 2010, which was inconsistent with the claim that he was employed at that organisation when he applied for the student visa,  the applicant said that he worked for [Company 1] until 2014 and had made a mistake. He said he was not sure why he did not declare the employment at [Company 1] in the protection visa application form, because he did that employment. The [job], as the Tribunal understands it, was the [details deleted] and claimed that he quit that job for ‘political reasons,’ namely, he was being targeted because he was a member of the MQM. Despite claiming that he worked there for a year, the protection visa application form declares that he was employed until April 2014 which was around the time, he departed Pakistan.

9. The applicant claimed that if he returned to Pakistan, he would be picked up at the Airport by the ISI (the Inter-Services Intelligence), the IB (the Intelligence Bureau), and the Sindh Rangers (the Pakistan Rangers). He claimed this would be an unlawful unrest and that he would be killed after disappearing. The applicant claimed that his name is on a ‘list’ of prominent MQM office bearers. He claimed the authorities would not be able to protect him because they are his persecutors. He claimed that he would not be able to relocate within Pakistan because each province in Pakistan is different from each other in terms of language, tradition and culture.

10. When the applicant was interviewed by the delegate, he provided a letter dated 11 November 2016 with the letter from [an organisation]. That letter detailed that the applicant was a member of that organisation since June 2014 and that the applicant was involved in activities in both Pakistan and Australia. The applicant attributed the inconsistency about when he joined the MQM in Australia being that he ‘officially joined’ in September 2017. The applicant also attributed a submission about joining the MQM in Australia 6 months after arrival as opposed to 3 months after his arrival as a mistake in proof reading.

11. The applicant also provided a letter dated 30 July 2015 which was sent by the MQM International Secretariat to the Secretary-General of the United Nations, Congressional Testimony from a research fellow at the Heritage Foundation, various press releases and news reports concerning the MQM, as well as a MQM publication from the United States  about the list of ‘missing workers and extra judicially killed persons’ where he highlighted that [Mr A] was the person who was taken by the rangers on 1 April 2014, and [a named person].

12. The applicant also provided photographs of himself with various people that he claimed were members of the MQM. He identified them by name and suggested that some of the were killed and others had been imprisoned. One of the photos also showed the applicant with various people surrounding the body of [Mr A] , who was the person that the applicant claimed he was with when that person was abducted on 1 April 2014.

13. The applicant also provided screen shots from a conversation from 12 March 2015 which were identified as the applicant having a conversation with [Mr B]. It was suggested that subsequently, [Mr B] was abducted and that the applicant then contacted two party workers [requesting] they assist filing a petition against an unlawful abduction of [Mr B]. It was claimed that those two party workers were abducted and then released. It was also claimed that prior to coming to Australia, the applicant had dinner with [a named person] who was subsequently abducted the next day and that his body was subsequently found at a construction site. There was also a photo that the applicant claimed was taken of him at MQM party headquarters where he ‘paid tribute’ to the ‘maytrs.’

14. At the Tribunal hearing, the Tribunal observed that the applicant did not claim in the protection visa application form that he was a member of the MQM in Australia and did not mention that he was involved in that organisation when interviewed by the delegate. The applicant said that he was never asked about the organisation in Australia but suggested that he would ‘get orders’ from the London office where the organisation is based. The applicant also said that he joined the MQM in Australia in September 2014, which was inconsistent with the letter suggesting that he was a member of the MQM since June 2014. The applicant told the Tribunal that he took four months to join the MQM in Australia because prior to 17 September 2017 (which was the leader’s birthday) no events were scheduled. The applicant said that he did not join the MQM in Australia after his arrival in this country because he was ‘already a member’ of the MQM in Pakistan. The applicant said that when he joined the organisation in 2014 in Australia, he was a member and subsequently became a member of the committee. The applicant claimed that he fears harm in Pakistan because of his involvement with the MQM in Australia and suggested that he was threatened with telephone calls from the Pakistan Embassy because that organisation was going to do a protest in 2017, and that he had received a number of threatening calls while in Australia.

15. In support of the applicant’s claims, the Tribunal was provided with letters from the following people:

16. There was a letter from [Mr C], who wrote that he would be able to provide oral evidence in support of the applicant. At the Tribunal hearing, [Mr C] said that the MQM has a hard time in Pakistan and that if the applicant returns to Pakistan, no one knows what may happen to him. [Mr C] said that he met the applicant in September 2017 in Australia.

17. There was a letter from [a named person] on MQM International Secretariat letterhead dated 18 April 2019 stating that the applicant has been a member of the organisation since 2002 and detailed that the applicant was detained in 2012 and escaped from the raid in 2014. The letter claimed that the applicant went into hiding until he was able to leave Pakistan.

18. There was a letter from [Mr D], who wrote that he would be able to provide oral evidence in support of the applicant. At the Tribunal hearing, [Mr D] said that he met the applicant in 2014 on social media and met him in person at a function in 2014 or 2015 in Australia.

19. The applicant told the Tribunal that he departed Pakistan on his own passport and departed the country lawfully, which was consistent with the evidence provided in the visa application form. The Tribunal asked the applicant how he was able to depart Pakistan if he was a person of interest to the authorities and would be arrested upon his return to Pakistan. The applicant said that he had no criminal charges against his name, and that his name was not on an exit control list. He told the Tribunal that his name would only be on an exit control list if he had been charged with murder of financial scams. The applicant said that the only assistance he received to depart Pakistan was people checking that the Rangers were not at the airport so he could depart from the country. In response to the Tribunal’s question about why no assistance was detailed in the protection visa application form, the applicant responded that the assistance was detailed in the submission provided to the Tribunal in 2023, and the applicant asserted that the letter from the International Secretariat supported the assistance he received to depart the airport. The Tribunal notes that that letter does not detail this assistance.

20. The Tribunal also observed to the applicant that he detailed he had one residential address in Pakistan from December 2009, and that he had not attempted to relocate within Pakistan after the claimed abduction in 2012. The Tribunal wondered why the applicant would remain living at one residential address if he was being targeted for harm in Pakistan. The applicant then asserted that he ‘spent the majority of his life’ in hospital lounges and parks to protect himself.’

21. At the Tribunal hearing the applicant claimed that he would also be harmed in Pakistan on account of his ethnicity. He attributed this to experiencing problems in school, admission processes for education, and job interviews. The applicant told the Tribunal that this was because he was not able to go to the university he wanted.

    FINDINGS AND REASONS

22. For the following reasons, the Tribunal has decided to affirm the decision under review.

23. The Tribunal is satisfied that the applicant is a male citizen of Pakistan named [name]. The Tribunal reaches that satisfaction based on the applicant’s Pakistan passport. The Tribunal is satisfied that the applicant does not possess the right to enter and reside in any other country because there is no evidence to demonstrate that the applicant has any other citizenship or right to enter and reside in a third country.

24. Therefore, for the purpose of the protection visa assessment, the country of reference is Pakistan.

25. The Tribunal is satisfied that the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act because the applicant was the only person included in the protection visa application, and there is no evidence that he is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

26. The Tribunal is not satisfied that the applicant was involved with the MQM in Pakistan as he claimed or that he was harmed or targeted for harm in Pakistan because of this involvement. The Tribunal comes to this conclusion for the following reasons.

27. First, the applicant’s statement in support of the student visa application is inconsistent with the applicant’s claims narrative. If the applicant’s purpose coming to Australia was twofold, namely to study in Australia and escape from the harm he experienced or future harm he feared, the Tribunal is satisfied that the applicant would have detailed these two reasons in his student visa application form. The Tribunal is also satisfied that the applicant’s statement in the student application form suggest that he would return to Pakistan to pursue employment opportunities in that country once he received his education qualifications in Australia.

28. Second, the timing of the applicant’s protection visa application form is inconsistent with the applicant’s claimed experiences of harm in Pakistan. The Tribunal is not satisfied that the applicant genuinely believed that he would not be able to lodge a protection visa application while holding a student visa, because if the applicant had experienced the harm he claimed to have experienced in Pakistan, the Tribunal is satisfied that the applicant would have arrived in Australia on his student visa, which is temporary in nature, and would had lodged the protection visa application shortly after his arrival, given the Rangers came to a friend’s apartment where the applicant was located in April 2014 necessitating his departure from that country and arrival in Australia about a week later.

29. Third, the fact that the applicant ceased studying in Australia in February or March 2015, and did not return to Pakistan nor lodge a protection visa application at the time he ceased studying (when study was the purpose of the student visa grant) demonstrates to the Tribunal that the applicant was not genuinely fearful of returning to Pakistan, because if he was, the proper course would be for him to lodge a protection visa to remain in Australia. The Tribunal is not satisfied that if the applicant had experienced the harm claimed in Pakistan he would remain on a student visa but not studying, and would only lodged a protection visa once his student visa was cancelled in September 2016. The fact that the applicant attributed his failure to return to Pakistan when he ceased his studies was because of a fear of harm in that country is inconsistent with the applicant not lodging a protection visa application at that time. The Tribunal’s assessment is that the applicant’s claim that he did not know he could apply for protection in Australia at that time, or that he did not apply for protection until he received guidance from others was evidence crafted to address the fact that the applicant delayed applying for protection until September 2016 despite entering Australia in May 2014.

30. Fourth, the applicant provided inconsistent evidence about his employment history and whether he had relocated within Pakistan. The Tribunal is satisfied that if the applicant was a witness of truth, there would be consistent evidence in something as basic as his employment history in Pakistan. The fact that the applicant did not detail employment with the employer he detailed in the student visa application form, and that his periods of employment was inconsistent between the written and oral evidence demonstrates to the Tribunal that the applicant is not a credible witness and is prepared to change his evidence to provide a narrative that he believes will be more supportive of his claims. Further, if the applicant was ‘in hiding’ as suggested in the letter and the applicant’s oral evidence, the Tribunal is satisfied that this hiding would have been detailed in the protection visa application form. The Tribunal is satisfied that the evidence about the applicant being ‘in hiding’ was manufactured at a later stage to lend credibility to the applicant’s protection claims and to undermine the conclusion that the applicant would not have remained living at the one address in Pakistan from 2009 if he was of adverse interest to the authorities in that country.

31. Fifth, the applicant’s evidence about his departure from Pakistan suggests that he was not a person of adverse interest to the authorities in that country. The Tribunal is not satisfied that if the applicant had the profile in Pakistan he claimed, he would be able to depart Pakistan on a passport issued in his own name. The fact that he was able to depart Pakistan suggests that he was of no adverse interest to the Rangers or any other group in that country. The Tribunal acknowledges that the claimed assistance that the applicant received to depart Pakistan appears to be limited to people checking that the Rangers were not present at the airport and did not go any higher than that. In those circumstances, it is understandable that there was no claim in the protection visa application form that the applicant departed Pakistan ‘illegally.’ However, it is reasonable to expect that the applicant would have referred to the assistance he received in terms of the airport being checked for Rangers in his written protection visa application. The Tribunal is satisfied that there was no reference to this occurring in the applicant’s written statement because the assistance did not occur and the reason the assistance did not occur was because the applicant was not wanted by authorities or groups in Pakistan. The Tribunal assesses that the claim that there was assistance provided to the applicant was manufactured subsequent to the protection visa application being lodged to lend credibility to the protection claims and to address the obvious question of how the applicant could leave Pakistan if he had the profile he claimed.

32. The Tribunal is not satisfied that the letter from the MQM International Secretariat can be given any weight concerning the applicant’s claimed involvement in that organisation while in Pakistan. The Tribunal is not satisfied that the letter is a true reflection of the applicant’s activity in that country given the concerns that the Tribunal has detailed about the credibility of the applicant’s claims.

1. The Tribunal accepts that the applicant has produced photographs of himself with other people who are identified as MQM supporters in Pakistan, as well as photograph with others surrounding the body of [Mr A] . However, the Tribunal is not satisfied that those photographs are indicative that the applicant was an MQM member or supporter in Pakistan. The Tribunal is also not satisfied that those photographs have been displayed in the Pakistan media because there is no independent evidence to demonstrate that this has occurred. Further, the Tribunal is not satisfied that the contact between the applicant and [Mr B] demonstrates that the applicant was a member of the MQM in Pakistan. 

2. The Tribunal is not satisfied that the applicant being photographed or a message between [Mr B] imputes that the applicant is a member of the MQM in Pakistan. The Tribunal is comfortable making those findings when considering the evidence and the Tribunal’s concern as a whole.

3. Concerning the applicant’s conduct in Australia, namely joining the MQM branch here, the Tribunal is not satisfied that this was done as a continuation of his political profile or activity in Pakistan. Given the inconsistent evidence about when the applicant joined the MQM in Australia, the Tribunal is satisfied that the evidence about when exactly the applicant joined that organisation in Australia was crafted in an attempt to suggest that the applicant did not wait until he stopped studying in Australia (and liable to his visa being cancelled from that point) to join the MQM in Australia. As the applicant said nothing about his involvement with the MQM in Australia during his interview with the delegate in February 2018, the Tribunal thinks it more likely that the applicant joined that organisation after the delegate interview because he thought it would lend credibility to his protection claims. The Tribunal is satisfied that the applicant would have discussed his involvement with the MQM in Australia with the delegate if he was active with that organisation at that time. It is on this basis that the Tribunal gives no weight to the contents of the letters or the oral evidence supportive of the applicant joining that organisation either in June 2015 or September 2014. The Tribunal is not satisfied that the letters and oral evidence are an accurate reflection of the applicant’s involvement with the MQM in Australia.

4. As the Tribunal is not persuaded that the applicant was involved with the MQM in Pakistan, and is not satisfied that the applicant was involved with the MQM in Australia prior to the interview with the delegate, the Tribunal concludes that the applicant is not a genuine supporter of the MQM and has only become involved with that organisation in Australia because he believes that it would lend credibility to his protection claims. As the Tribunal is not satisfied that the applicant has become involved with the MQM in Australia for a genuine purpose, the Tribunal is not satisfied that the applicant would become involved with the MQM in Pakistan upon his return to that country. This is because the Tribunal concludes that the applicant’s involvement in the MQM in Australia was done only to obtain a protection visa.

5. The Tribunal is not satisfied that the applicant’s involvement with the MQM in Australia is know to the authorities in Pakistan. The Tribunal is not satisfied that there is any evidence to demonstrate that the applicant’s activities in Australia will result in a real chance of being imputed with a political opinion supportive of the MQM when he returns to Pakistan.

6. The Tribunal accepts that the applicant’s ethnic group in Pakistan is an Urdu speaking Muhajir. However, there is nothing in the DFAT Country Information Report to demonstrate that Muhajir’s are subject to systematic and discriminatory conduct in Pakistan. The Tribunal is satisfied that if there was any such discrimination, there would be reference to that discrimination in the report. The applicant provided the Tribunal with no reports to demonstrate that Muhajirs are persecuted in Pakistan, and instead provided reports concerning MQM activists. The Tribunal is satisfied that while the MQM advocates for the rights of Muhajirs, the MQM and Muhajirs are distinct from each other.

7. The applicant’s demonstrated work history in Pakistan, and the fact that he was able to be educated in that country, satisfies the Tribunal that the applicant has not been the subject of systematic and discriminatory conduct in Pakistan. If the applicant was not able to secure his first choice for university studies that does not mean that he has been persecuted. There may be a number of reasons why the applicant was not successful in that endeavour. The Tribunal is not satisfied that the reason for this is because he has been persecuted.

8. Further, the applicant’s claims about harm and fear of future harm based on his ethnicity was not detailed in his protection visa application form. The Tribunal is satisfied that if there was a basis for that claim the applicant would have raised it in the form. It appears that the claim only became apparent in the course of the Tribunal hearing, but was not accompanied by any meaningful detail other than the applicant’s assertion that he did not obtain his first preference choice for studies. The Tribunal is not satisfied that the applicant genuinely believes he will be persecuted in Pakistan because of his ethnicity or that there is any evidence to demonstrate that Muhajir’s are a real chance of serious harm to amount to persecution in Pakistan.

   CONCLUSION

9. The totality of the Tribunal’s concerns lead the Tribunal to find that the applicant was not involved with the MQM in Pakistan and was not abducted or harmed in any way. The Tribunal is not satisfied that the applicant was present when a person was taken by the Rangers, and is not satisfied that the applicant left Pakistan for the reasons claimed in the protection visa application form.

10. The Tribunal is not satisfied that the applicant is a person of adverse interest in Pakistan because the Tribunal is not satisfied that the applicant’s narrative about what he claimed happened to him in Pakistan is true.

11. The Tribunal is not satisfied that the applicant faces a real chance of harm in Pakistan because of his involvement with the MQM in Australia. The Tribunal is not satisfied that the applicant will engage in any activity supportive of the MQM on return to Pakistan because the Tribunal is not satisfied that the applicant engaged in any activity related to the MQM in Australia for reasons other than strengthening his protection claims.

12. As such, the Tribunal is not satisfied that the applicant will return to Pakistan and get involved in any MQM activity.

13. The Tribunal is not satisfied that the authorities in Pakistan are aware of the applicant’s activities in Australia connected with the MQM. The chance of the authorities (however described) in Pakistan becoming aware of the applicant’s activities in Australia are remote.

    Refugee

14. For the reasons given above, the Tribunal finds that there is no real chance the applicant will suffer serious harm in Pakistan due to his race, religion, nationality, membership of a particular social group, or political opinion.

15. Therefore, the applicant is not a person who satisfies s 36(2)(a) of the Act.

    Complementary protection

16. For the reasons given above, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk the applicant will suffer significant harm.

17. Therefore, the applicant is not a person who satisfies s 36(2)(aa) of the Act.

    Member of the same family unit

18. For the reasons give above, the Tribunal finds that the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

100.   Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act,

DECISION

101.   The Tribunal affirms the decision dated 27 February 2018 refusing to grant the applicant a protection visa.

Nathan Goetz

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.

…