1813075 (Refugee)

[2023] AATA 2006

1813075 (Refugee) [2023] AATA 2006 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)

CASE NUMBER:  1813075

COUNTRY OF REFERENCE:                   South Africa

MEMBER:Scott Clarey

DATE:31 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 March 2023 at 4:40pm

CATCHWORDS

REFUGEE – protection visa – South Africa – political opinion – MQM Party in Pakistan – race – South Asian immigrants in South Africa – armed assault – business robberies – kidnapping threats – fear of killing – violent xenophobic attacks – return visits to Pakistan – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2018 to refuse to grant the applicants a protection visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 24 May 2017, the primary review applicant, [named] applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.

2. [The applicant] was born on [DOB] in Pakistan and is a citizen of South Africa. I note and accept that [the applicant] renounced his Pakistani citizenship in or around 2017. On the basis of the copy of [the applicant’s] passport provided to the Department, I accept that he is a citizen of South Africa and that his identity is as he claims it to be. I accept that South Africa is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

3. The second named visa applicant, [named], was born on [DOB] in Pakistan and is a citizen of Pakistan. On the basis of the copy of [her] passport provided to the Department, I accept that she is a citizen of Pakistan and that her identity is as she claims it to be. I accept that Pakistan is [Applicant 2’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

4. The third and fourth named visa applicants, [Applicant 3] and [Applicant 4], were born in Pakistan on [dates] respectively. On the basis of the copies of their passports provided to the Department, I accept that they are citizens of South Africa and that their identity is as they claim it to be. I accept that South Africa is their country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

5. The applicants arrived in Australia [in] April 2017 on a visitor visa (subclass FA-600).

6. I note that there were a series of delays and false starts in relation to the hearing of this case by the Tribunal. The first hearing was scheduled for 18 May 2022 however the hearing was rescheduled at the applicants’ representative’s request. A hearing was held on 31 May 2022 however it needed to be adjourned due to the interpreter’s allocated time being exhausted before the conclusion of the hearing. The resumed hearing was scheduled for 21 July 2022 however, the applicants failed to attend. A further hearing was scheduled for 10 August 2022 however this was cancelled at the applicants’ request due to [Applicant 4’s] confirmed Covid-19 diagnosis. A further subsequent hearing was scheduled for 17 August 2022, however this hearing was cancelled at the applicants’ request due to [Applicant 2] and [Applicant 4’s] confirmed Covid-19 diagnoses. A further hearing was scheduled for 30 August 2022 and was completed. The Tribunal hearings were conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review.

7. The issues in this review are whether the applicants have a well-found fear of being persecuted for one or more of the five reasons set out set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their respective countries, there is a real risk they will suffer significant harm.

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

   Claims and evidence

   Evidence before the Department

9. [The applicant] set out his claims for protection in his application form as follows (unedited):

   Q 88: I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in).

   A:Pakistan and South Africa

   Q 89:Why did you leave that country?

   A:I left Pakistan as I was working for the political party MQM and the party got split into two groups namely, MQM and MQM Haqiqi. Due to these unavoidable circumstances, I thought it best to leave the party in the interest and safety of me and my family. This proved to be correct, as my family's lives came under life threat in the near future.

   This fact became evident as in that same year some unknown armed personnel opened fire at my house directly. Fortunately, none of us got hurt. After this incident, I feared for my life and decided to leave the country. At first, I tried to move to other neighbouring countries like [Country 1] and [Country 2]. Then i moved on to [Country 3] but finally was able to reach Durban, South Africa.

   Why i left South Africa?

   I decided to leave South Africa because of the high xenophobia and violence against the non Africans/foreign people in the region. When I was living in in Durban and then in Johannesburg, I started getting life threats from MQM (Altaf Group), [and two named persons] from their offices based in Durban and Johannesburg in South Africa. They, along with the locals, looted and broke into my [business premises] 3 times and used to steal my goods containers that used to arrive there. My car was also taken away at gunpoint from me in Johannesburg.

   Then I moved to CapeTown where I tried to setup and run a [product 1 business] but both were looted a number of times and I ended giving them up due to the heavy losses that I had to bear because of this.

   Then I started receiving kidnapping threats to pay protection money to the local gangs. My family and I were also shot at in our car one day when we were going shopping. When I tried to speed away from them they opened fire at us, point blank. I saved my family by driving into a busy parking lot and they ran away. But an hour later, I received a threatening call from them saying that they will kill me and my family and/or kidnap my children.

   Due to these similar reasons also explained previously.

   Q 90:What do you think will happen to you if you return to that country(s)?

   A:If i return to Pakistan or even to Durban (South Africa), I fear that I will be killed. All my close relatives have denounced their links and family connections to me. History has proved this open fact that any person, like myself, if returned to Pakistan, even after a long time has fallen victim and been killed.

   Therefore, the situation is life threatening for me to be returned to Pakistan or to South Africa as they (MQM-Altaf Group) have their offices in Durban and Johannesburg, South Africa . I left Durban and Johannesburg for these very reasons mentioned and came to Australia .

   Q 91: Did you experience harm in that country?

   Yes

   A:When I was living in Pakistan I received life threats at several occasions. The latest one was where some unknown armed personnel opened fire directly at my house in Landhi, Karachi . Evidence have been provided with this application to support this claim. In South Africa i have been victimised several times, burglarised at my business place a number of times, my family has been been threatened and children being told that they would be kidnapped. I have provided police reports to support my claims. My friend, [Friend A] also got kidnapped in Cape Town last year who is a business owner and was operating [product 2] shops. I have also provided newspaper cuttings highlighting such events as further evidence of my claims.

   Q 92:Did you seek help within the country(s) after the harm?

   A:Yes

   In both the cases, like in Pakistan and South Africa, i had reported the matter to the local police to seek their help

   Q 93:Did you move, or try to move, to another part of that country(s) to seek safety?

   A:       Yes

   As I have explained in detail in question 89, I have tried my best to move to a number of countries like [Country 1], [Country 2], [Country 3] and then finally to South Africa when i was living in Pakistan. Unfortunately for me and my family, even after living in South Africa for 17 years, the issues, mainly relating to my political party affiliations and the threats from local people where I have lived for so many years, has made me to decide to move somewhere else for the safety of my family. Although, I have found it difficult to uproot my family to move from South Africa after 17 years but there is nothing more precious to me than the life and safety of my family.

   Q 94:Do you think you will be harmed or mistreated if you return to that country(s)?

   A:       Yes

   If i return to Pakistan or even to Durban (South Africa), I fear that I will be killed. All my close relatives have denounced their links and family connections to me. History has proven this open fact that any person, like myself, if returned to Pakistan, even after a long time has fallen victim and been killed.

   Therefore, the situation is life threatening for me to be returned to Pakistan or to South Africa as they (MQM-Altaf Group) have their offices in Durban and Johannesburg, South Africa. I left Durban and Johannesburg for these very reasons mentioned and come to Australia.

   Q 95:Do you think the authorities of that country(s) can and will protect you if you go back?

   A:       No

   I have tried this many times already. No help or protection of any sort has been offered or provided to me or mv family. In fact, the South African Police Officers have advised me not to bring any complaints of threats to them.

   Q 96:Do you think you would be able to relocate within that country(s)?

   A:       No

   This has already been tried by me (Please see my movement record as proof). I have tried moving/relocating from Durban to Johannesburg, then from Johannesburg to Cape Town but no safety of life for me and my family anywhere.

   Evidence before the Tribunal

10. At the Tribunal hearings on 31 May 2022 and 30 August 2022, I discussed at length with [the applicant] various aspects of his claims and specific details of the issues he claimed to have faced in South Africa. I note that [name] gave oral evidence that was consistent with his previous accounts of these claims and issues. [The applicant] told the Tribunal that he was born in Karachi and completed his high schooling there. [The applicant] stated that he was born and raised as a Sunni Muslim and belonged to the Muhajir ethnic group. He has [number] siblings ([genders specified]) all of whom are still living in Karachi. Both of his parents are now deceased. [The applicant] said that he had previously worked for a company that made [product 3] in Karachi. [He] said that he had been married twice (in Pakistan), the first time in 2001 (there were no children from this marriage) and the second time in 2013 (to the second named applicant). He has [children] from his second marriage [details deleted]. All of his children were born in Pakistan.

11. [The applicant] told the Tribunal that in 1997 he had travelled to [Country 1] to find work but was unsuccessful. From [Country 1] he travelled to [Country 2] and spent three months looking for work but was again unsuccessful and returned to Pakistan where he returned to work at the [product 3] factory. Due to various reasons (discussed further below), [the applicant] said that in 1999 he decided to start a journey to South Africa where he thought he may be able to find work. That year he travelled to [Country 4] for two months where he applied for a visa to [Country 3]. He travelled through [Country 3] in 1999 and ultimately entered South Africa [illegally], with no valid visa for that country, after paying a bribe to a border official. He said that journey was a long and arduous one, and he ultimately arrived in Johannesburg. He quickly met up with members of the substantial Pakistani community in Johannesburg and after approximately three months there travelled onward to Durban. He found a job selling [product 4] but struggled initially because he did not know the language or local customs. [The applicant] said that he stayed in Durban for eight years until 2008, when he returned to Johannesburg and started working in a [product 5] shop. He then moved to Pretoria in 2009, before moving back to Karachi between 2009 and 2011 to look after his mother who had cancer who ultimately passed away in 2011.

12. [The applicant] returned to South Africa in 2011 and worked for five years in Cape Town running [a product 1] shop. He returned to Pakistan again in 2015 after his father had a stroke. [The applicant] said that his wife (the second named applicant) joined him in Cape Town in 2012. They were officially married in 2013 however they had undergone a traditional religious wedding ceremony years earlier in Pakistan. [The applicant] said that he had received South African citizenship in 2006 and had decided in 2017 to renounce his Pakistani citizenship. When I asked him why he had decided to renounce his Pakistani citizenship, [the applicant] stated that he was in a dispute with family over the ownership of his parents’ house, and one of his cousins had told members of the Muttahida Qaumi Movement (MQM) that he was in Pakistan. He also later said that he abhorred the situation in Pakistan and the inherent corruption there. [The applicant] said that when he returned to Cape Town in 2016 there are a lot of issues in his personal life. He said that his [product 1] shop was targeted and destroyed by members of MQM. It was at this time that [the applicant] went to [Country 5] to speak personally with the leader of MQM to explain what was happening to him in South Africa, but this was to no avail as he said nobody listened to him and asked him to leave and go back to South Africa.

13. [The applicant] told the Tribunal about a specific incident that occurred shortly after he returned to Cape Town from [Country 5] in 2016. He said that he attended a community meeting in late November 2016 and afterwards drove to go shopping when he realised he was being followed by men in a white car. He said that he realised the men were armed and they fired shots at his car in the car park. [The applicant] said he didn’t know whether they were African men or Pakistanis. When I asked [the applicant] why he thought he was being fired upon, he said that he thought the attack was related to his recent trip to [Country 5] and the fact that he had complained about MQM’s activities in South Africa to its leadership. He said it was after this event that he decided to completely disassociate himself from the MQM movement and anybody in it. This led to his decision to flee to Australia with his family a few months later in April 2017.

14. I asked [the applicant] specifically about the threats he claimed to have received due to his association with the MQM. [The applicant] said that he’d had an association with the group since his school days, when the group was known as All Pakistan Muttahidda Students Organization (APMSO). He said in 1996 he became what’s known as a ‘strong member’ of the organisation that consisted of people that were highly committed to the political movement. He had a role in recruiting people to the cause and was also involved in protests and fundraising. He said the group was focused on minority rights for Urdu speakers and Muhajirs. When I asked [the applicant] why he had become involved with this group, he said that the ideology had attracted him, and he supported what the group was agitating for, which was greater political rights and freedoms for Muhajirs. When I asked him about problems associated with his membership of the movement, [the applicant] said that his issues started in 1992 when the movement split into two. He said that the Pakistani government realised that MQM was a threat and wanted to do something to destabilise it and break it apart. As part of this internal factional power struggle, his house was shot at in 1992, as members of the rival faction lived close by and new where he lived. When I asked [the applicant] why he had fallen out with this particular faction, he said that this group wanted him to join their side of the movement, and this was one of the reasons he had originally decided to pursue work outside of Pakistani in [Country 1] and elsewhere, to escape this factional power struggle and the concomitant problems it was causing. He said that when he returned to Pakistan the threats continued and he had been told that if he didn’t join the faction, then they would kill him or harm members of his family. When I asked [the applicant] why he had been targeted to join the rival faction, he said that he was seen as a good member of the broader movement who was a good fundraiser and did what was required of him.

15. I asked [the applicant] what he feared if he were to return to South Africa. He said that he’d left everything behind and that there was no way he could restart his life there. He said that his wife had become very afraid living there and that there is no way his family could return. He said that he was convinced members of MQM would kill him because he had abandoned the cause and was considered disloyal. He said that the MQM network was active in South Africa and consisted of both South Africans of Pakistani origin as well as Pakistani nationals in the country. He said it wasn’t just him that was targeted and the group was known to target other members of the cause from India and Bangladesh who were living in South Africa. I note that [the applicant’s] representative also stated that members of MQM were highly corrupt, and his client wanted to disassociate himself from the rampant corruption that had come to characterise the movement.

16. [The applicant] stated that he held fears stemming from his past membership of MQM and the threats from the group in South Africa. He said this was exacerbated by the general crime situation in the country and the prevalence of gang activity, which was often inextricably intertwined with the issues related to MQM. I asked [the applicant] why he thought he’d be targeted by members of the group if he returned to South Africa in the foreseeable future. He said that at the heart of the dispute was money, and that they wanted him to return to South Africa and raise money for the movement which was something he had been successful at in the past. He had refused their request to do this and so now they had labelled him disloyal and considered him an enemy of the group. I asked [the applicant] if there was somewhere else in South Africa he could relocate to, given that he had lived in other areas of the country in the past. He said that it was very difficult for him to relocate elsewhere in South Africa, because he is a member of an identifiable minority group (South Asians or specifically Pakistanis in South Africa). He said that there was a lot of racism toward migrants in South Africa and that the general population did not like South Asians and discriminated against them wherever they were. He said that in his view the South African population was xenophobic and they were hostile to those they consider to be outsiders.

1. At the hearing, the Tribunal also heard evidence from [the applicant’s] wife (the second named applicant), [name]. [She] stated that as a clearly identifiable South Asian woman living in South Africa there were other fears she held. She said she was limited in her ability to move around her city. She said that for example she could not catch up with friends freely as she was constantly in fear. She said she was affected by both the issues that were facing her husband in relation to her his association with MQM, and also general issues such as crime that were exacerbated by the fact that she was an easily identifiable ethnic minority in South Africa. She said that she was fearful of general racism and xenophobia directed at foreigners and particularly women. I discussed with both [Applicant 2] and [the applicant] country information that suggested that many South Asians were able to live in South Africa quite freely. [Applicant 2] stated that it was a different experience for South Asians who were born in South Africa but she and her husband, as new and clearly identifiable migrants to the country, had a different experience as many migrants did. She said that kidnapping and abduction is rampant there, and that general crime and theft is a huge problem. She said that, for example, the family would never wear gold or any other valuables because it was likely to be stolen and that migrants were much more vulnerable to generalised crime, and in her view South Asian women were particularly so. She said that because of this she would only leave the house if it was strictly necessary to shop for necessities.

2. [Applicant 2] confirmed that she has Pakistani citizenship by birth, and that both of her children were South African citizens. I asked [Applicant 2] why she could not return to Pakistan to live. She said that as her husband did not have the right to live there any longer (because he had renounced his Pakistani citizenship) it would be very difficult to return there as a single woman on her own. The Tribunal also heard evidence from [the applicant’s] daughter, [named], the fourth named applicant.

3. [The applicant’s] representative also gave evidence to the Tribunal at the hearings. He noted that serious crime issues in South Africa, and the fact that the businesses of foreigners were targeted, and foreigners had a much higher incidence of generalise crime than locals. He reiterated their factional split that MQM had undergone, and the fact that MQM in South Africa had taken advantage of the lawlessness there, and use criminal gangs to intimidate people and facilitate their business.

   Country information

4. I have considered [the applicant’s] claims against various sources of country information relating to the situation in South Africa, summarised below. I note that the Australian Department of Foreign Affairs and Trade (DFAT) does not have a country information report on South Africa, therefore I have had regard to various other relevant sources of country information, including a report from the University of Johannesburg titled ‘Visible and Vulnerable: Asian Migrant Communities in South Africa Africa’.[1] As noted above, I have also had regard to various country information submissions made to the Tribunal by [the applicant] and his representative.

   Violent crime in South Africa

   [1] Yoon Jung Park and Pragna Rugunanan, ‘Visible and Vulnerable: Asian Migrant Communities in South Africa Africa, the University of Johannesburg, 2010.

5. Chronic violent crime is endemic in South Africa according to the DFAT Situational Update Report (dated 31 January 2021):

   There were 21,325 murders in South Africa between 1 April 2019 and 31 March 2020 – up from 20,022 the year before – a 1.4 per cent increase.1 On average, 58 people are murdered in South Africa each day, representing a murder rate of 36 people per 100,000 people – well above a global average of seven people per 100,000. In 2018, Police Minister Bheki Cele described the country’s murder rate as close to that found in a war zone, and criminologists agree that violent crime is pervasive in South Africa and affects every sector of society.[2]

   [2] Australian Government Department of Foreign Affairs and Trade, Situational Update: South Africa Farmers (DFAT Country Information Series) 31 January 2021.

6. On 3 June 2022, the South African Police Service released crime and policing data that showed an alarming 22% surge in murder, equating to 40 people per 100,000 residents or seven times the global average. Other categories of serious violent crime have also increased.[3] This places South Africa third as the most violent and dangerous place on earth and getting worse, notably with high rates of assaults, rape, homicides, and other violent crimes.[4]

   [3] Institute for Security Studies, New SA crime trends are bleak, but at least we have the data, 13 June 2022.

   [4] World Population Review, Crime Rate by Country 2022, 2022.

7. Persistent high levels of violence have been attributed to a range of factors, including poverty and deprivation, high unemployment, poor public services, a subculture of violence and tribalism that has led to the normalisation of violence and criminality, high levels of inequality, social exclusion and marginalisation, the country’s ongoing political and socio-economic transition as well as the proliferation of firearms, growth in organized crime and corruption within a criminal justice system.[5]

   [5] Qaakathekile G Mathuthu Ndlela, Crime in South Africa, Crime Law and Social Change Journal, January 2020; Lindy Heinecken, What's behind violence in South Africa: a sociologist's perspective, 16 January 2020. 

8. Transparency International’s 2021 Corruption Perceptions Index (CPI) scores South Africa 44 out of 100 where a score of 0 is highly corrupt. The CPI measures the perceptions of corruption in the public service – highlighting the extent of serious corruption.[6] Corruption Watch points to the COVID-19 pandemic and impeded access to services for millions of people, protracted armed conflicts, rising terrorist threats and systemic corruption involving public officials and substantial sums of money and resources as reasoning for the country’s poor performance. For example, former South African President Jacob Zuma recently faced multiple charges of corruption for fraud, tax evasion, money laundering, racketeering and accepting cash bribes during his time in public office.[7] President Zuma was found guilty and served time incarcerated.[8]

   [6] Transparency International, Corruption Perceptions Index: South Africa, 2021.

   [7] Jason Burke, Jacob Zuma sought to hand state assets to allies, finds corruption report, The Guardian, 2 May 2022.

   [8] Kenneth Roth, South Africa: Events of 2021, Human Rights Watch, 2021.

9. In the report ‘Visible and Vulnerable: Asian Migrant Communities in South Africa Africa’, the authors outline various issues facing Asian migrant communities in South Africa. The report details that Asian migrants in South Africa are increasingly vulnerable to violent xenophobic attacks, many of which go unrecorded and unreported. The report states that Asian migrants, particularly those involved in the retail sector, are particularly vulnerable to issues related to crime and corruption, including extortion and robbery. Although the report is focused on Asian migrant communities in South Africa in general, it notes that:

   Pakistanis, in particular, indicated that there were tensions with both the local Indian South African community and within factions of the Pakistani community. Interestingly, these intra-group tensions were viewed as more salient than discrimination from within broader South African society.

10. An article published in April 2021 titled ‘Pakistani syndicates make South Africa an epicentre of crime’[9], stated:

    …Kidnapping incidents involving businesspersons are typically criminally motivated. Perpetrators have demonstrated ties to wider international syndicates in addition to smaller, less sophisticated operations. Ransom demands often amount to between ZAR 12.4 million and ZAR 74.7 million (USD 1 million and USD 6 million); however, these demands can be negotiated downwards as ransom payments typically average between ZAR 100,000 and ZAR 200,000 (USD 8,000 and USD 16,000). In April-2018, for example, a polish national, identified as Barbara Wadolowska, was kidnapped outside a prominent hotel in Sandton, Johannesburg. Her kidnappers demanded a ransom of approximately ZAR 29 million (USD 2.3 million) for her release. Wadolowska was released three days later near Johannesburg’s O.R. Tambo International Airport after a portion of the ransom was paid. Similar cases have been reported in Pretoria, Durban and Cape Town.

    Overall, kidnappings are more prominent in the Western Cape and Kwa-Zulu Natal (KZN) provinces; however, it is clear the crime is growing in Gauteng. In a concerning incident in April-2018, Pakistan national and head of an alleged kidnapping syndicate, Majeed ‘Manjla’ Khan, was reportedly assassinated in central Johannesburg in an attack attributed to an alleged turf war between two rival kidnapping syndicates in the city. Such targeted violence demonstrates the growing competition between gangs within this lucrative criminal sector. Furthermore, the large rewards available through kidnappings are likely to attract other already-established criminal gangs operating in South Africa to conduct their own targeted attacks.

    Members of the Pakistani community, many of whom feared giving their names, claimed that the gang had been operating since the late 1990s when the first wave of immigrants arrived.

    A few years back South African investigation authorities tried to zero in on the Pakistani Kidnapping Syndicates, however later the Pakistanis using the illegal money and making use of corruption were able to establish well organized Kidnapping Syndicates.

    [9] Pakistani Syndicates Make South Africa An Epicenter of crime, Indians in Africa, 19 April 2022.

11. An article published in December 2018 titled ‘MQM-South Africa was preparing for a full scale war with LEAs in Karachi’ details the militant activities of MQM in South Africa. The article states:

    According to details, the two MQM-South Africa members arrested from North Karachi on December 11 told the police on Thursday that the party’s London chapter was preparing for a war against the police and other LEAs in Karachi. They also told the police that the latest task assigned to them was to kill three political leaders.

    According to media reports, two suspects named Mustaqeem and Muqeem informed the police that they were assigned the task of assassinating three politicians within a few days. They told the police that they were in touch with MQM-South Africa chapter’s Shuja Bobby group. The suspects disclosed that they took orders from the central command. The suspects also admitted that they were involved in various terrorist activities and told the police that they went into hiding after a raid was carried out on the party’s head office nine-zero back in March.

    Rangers had apprehended the two suspects on Tuesday (December 11) from North Karachi during an intelligence based raid. The LEAs then raided a house in Azizabad, Federal B Area and recovered a cache of arms and weapons from there.

    Relevant law

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.

    Mandatory considerations

17. 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.

    Findings and reasons

18. I accept that [the applicant] is a Sunni Muslim man of Urdu/Muhajir ethnicity who was born and raised in Karachi, Pakistan, and who is a South African national, having lived in that country for over a decade and acquiring citizenship there in 2006. I accept that [the applicant] renounced his Pakistani citizenship in 2017 and no longer has any right to live in Pakistan. Considering the totality of the evidence provided, including information and documents on the Department’s file, and new information provided to the Tribunal, I accept that [the applicant] was targeted by members of MQM because of his previous involvement and affiliation with the political movement. I accept that he was targeted by the group both in Pakistan and in South Africa, where country information suggests the group is active and involved in nefarious activities including extortion. I accept that [the applicant] has been directly and indirectly threatened by members of MQM operating in both Pakistan and South Africa.

19. I held some concerns regarding some of the evidence presented by [the applicant] in relation to his case and claims, including relating to specific claimed incidents of past threats/harm, [the applicant’s] profile in his home area and why [the applicant] had chosen to return to Pakistan in the past. I discussed these and other concerns with [the applicant] at both hearings and I’m satisfied with the responses provided. As noted above, I accept that [the applicant] was threatened by members of MQM as claimed.

20. Having considered the available country information and [the applicant’s] specific circumstances, particularly (as detailed above) the information relating to the activities of MQM in both Pakistan and South Africa, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from members of the group (and/or their associates) if he were to return to his home area for reasons relating to his (actual or imputed) political opinions, because of his previous association with the MQM political movement in Pakistan, as required by s 5J(4)(b) of the Act, in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also accept that [the applicant’s] fear of harm (and his likelihood of being harmed if he returned to South Africa) is linked to, and exacerbated by, his membership of a particular social group, namely South Asian immigrants in South Africa. I also consider that [the applicant’s] (actual or imputed) political opinions, in addition to his membership of the above identified particular social group, are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions.

21. Pursuant to s 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.

    Relocation

22. In SZATV v MIAC (2007) 233 CLR 18, the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country if, under all the circumstances, it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.

23. I am satisfied that [the applicant], as a citizen of South Africa, has the right to relocate within South Africa. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[10]

    [10] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]

24. In considering [the applicant’s] circumstances and the ‘reasonableness’ of him relocating within South Africa, I have considered country information about the generalised crime situation in South Africa and the increased risk that migrants have in relation to this crime. For these reasons, I do not consider it would be reasonable to expect [the applicant] to relocate himself to another part of South Africa where he has no family or social support, to escape the real risk of significant harm he faces in other parts of the country.

    State protection

25. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit, in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non‑state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

1. In its 2021 Country Report on Human Rights Practices in South Africa[11], US State Department outlined various issues and shortcomings in relation to South Africa’s internal security agencies including its police force. Although it was noted that there were continuing efforts to professionalise SAPS, it remained understaffed ill-equipped and poorly trained and noted corruption was rife within its ranks. The report also stated:

   Police use of lethal and excessive force, including torture, resulted in numerous deaths and injuries, according to the Independent Police Investigative Directorate (IPID), Amnesty International, and other nongovernmental organizations (NGOs).

   …

   Impunity was a significant problem in the security forces. In June the national police commissioner admitted that SAPS needed to improve its “discipline management” for police officers accused of violence. The lack of police accountability for thousands of annually registered police-brutality complaints was documented by the police watchdog organization IPID. The factors contributing to widespread police brutality were a lack of accountability and training.

   [11] United States State Department, 2021 Country Reports on Human Rights Practices: South Africa.

2. The information before me indicates that South Africa faces one of the highest crime rates in the world and that internal security agencies including the South African police force are beset with problems and have been unable to effectively address high levels of crime and associated violence. Given the longstanding nature and seriousness of the crime issues in South Africa, I find that [the applicant] could not obtain, from an authority of the country, effective state protection against the harm he faces.

   Conclusion on issues related to harm in the future from MQM and/or related groups and/or their agents

3. Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the members of the MQM group, and/or their agents, if he returned to his home area in South Africa. I also find that [the applicant’s] likelihood of being harmed if he returned to South Africa linked to, and exacerbated by, his membership of a particular social group, namely South Asian/Pakistani immigrants in South Africa. I am satisfied that the real chance of serious harm [the applicant] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is his profile as a former member of the MQM group and his membership of a particular social group, namely South Asian/Pakistani immigrants in South Africa.

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

   DECISION

5. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

   (ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Scott Clarey
   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.

   …