1823104 (Refugee)

[2020] AATA 1926

1823104 (Refugee) [2020] AATA 1926 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823104

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Anne Grant

DATE:24 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 24 February 2020 at 12:36pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Ahmadi – particular social group – membership of specified family group who are opposed to and have been in conflict with a rival criminal gang – experienced assault and extortion – family members killed, assaulted, robbed and prosecuted – localised harm – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2

CASES

Applicant S v MIMA (2004) 217 CLR 387
Januzi v SSHD [2006] 2 AC 426
MIAC v SZQRB [2013] FCAFC 33
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 17 March 2014 and the delegate refused to grant the visas on 9 October 2015.

3. This application was previously considered by the Tribunal and decided by Member Burns on 29 May 2017.  Member Burns affirmed the decision not to grant the applicants protection visas.  The applicants appealed to the Federal Circuit Court [in] June 2017.  [In] August 2018, the matter was remitted by consent.     The remittal was on the basis that the parties considered that the member had misconstrued evidence given by the applicants about the claimed persecutors attempting to find the applicants’ children.

4. A hearing was conducted on 7 November 2019.  The applicants attended the hearing to give evidence and present arguments.   The applicants were both present at the commencement and conclusion of the hearing, but otherwise gave evidence separately.     An interpreter in the Urdu and English languages was present and assisted the hearing.

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality.   The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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.

18. The issues in this case are whether the applicants have a well-founded fear of being persecuted for one or more of the five convention reasons and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him or her being removed from Australia to Pakistan, there is a real risk that he or she will suffer significant harm. 

    CLAIMS AND EVIDENCE

19. The applicants have provided passport and identity information which establishes and I accept that they are citizens of Pakistan.  Pakistan is their country of nationality for the purposes of considering their refugee claims and the receiving country in considering their complementary protection claims.  

20. The applicants claim that they fear serious harm from members of a local powerful gang family in [Town 1], in Punjab State, Pakistan.  The first applicant was formerly a successful businessman with [several businesses] in Pakistan. 

21. I have taken into account the documents and articles provided by the applicants in support of their claims both to the Department and to the Tribunal in the process of review (some of which I have referred to in this statement and footnoted where appropriate) and have also read the transcripts of the original tribunal hearings.  The essential details of the applicants’ claims can be summarised as follows: 

    ·The first applicant moved to [Town 1], Punjab Province in 2001.

    ·The first applicant is a person of Ahmadi heritage.  The applicants have claimed at various stages and given evidence that they would be persecuted in Pakistan due to his Ahmadi faith and that they were targeted in the past due to that faith.  At hearing, the applicants changed their evidence on this aspect of their claims, which will be discussed further below.  The first applicant stated that even his wife’s family (who are Sunni) did not know his heritage when they married, and he is not religious.  However, later, when the second applicant’s family did come to know of his Ahmadi heritage, all but one brother rejected them.  That brother was [Mr A].

    ·Members of a family of the name ‘[Family B]’ moved to the area in 2005.  The father had [number] sons and they established a protection and crime racket in [Town 1], accompanied by extreme violence and extortion.  In around 2008 another criminal group, the ‘[Group 1]’ moved to [Town 1] in direct competition with the [Family B] Group.  Some members of the second applicant’s family became involved with [Group 1].  The applicants claim that the [Family B] support the extremist organisation Lashkar-e-Janghvi.  They also claim that the [Family B] Group are involved in arms and drugs trade and had  corrupted local police.  [Group 1] was also involved in similar drug and arms trades and the two gangs were competing against each other. 

    ·The first applicant was a prominent [Town 1] businessman.  The first applicant had established a successful [Product 1] business in [Town 1].  The business operated during [time period] when there was high demand and made a good living for him and his family.  The Family Blso owned some land which was leased out and earned money from that.    At hearing the first applicant also disclosed that he had a profitable [Service 1] business which had not previously been revealed and that he had sold it prior to leaving Pakistan for ‘a good price’, making the applicants financially secure.   He described himself as a successful businessman.

    ·In 2007 and 2008 the [Family B] group came to him and demanded money, saying it was a loan to help with bail or other legal issues the family were facing, but with no understanding that it would ever be repaid.  He gave them [amount] Rupees on each occasion.  The applicants described this as protection money to enable the first applicant to keep running his businesses and as being money demanded from all successful businesses in [Town 1].  The first applicant told me at hearing that he was not targeted for this money because of his faith as an Ahmadi.  He said all successful businesses in the town were targeted.

    ·In 2009, the [Family B] Group came to collect from him again during the [Product 1] season, but wanted much more.  However he had experienced some additional costs that year, including replacing a vehicle, and told them that he could not afford it.  He asked for more time to get money together.  The first visit was in [month].  After making threats to him that he would suffer dire consequences if he didn’t pay, they left.

    ·On [a date in] November 2009, (there has been some confusion about the exact date but it is not in issue that it was at or around the date that the first applicant was hospitalised) several members of the [Family B] Group again came to their home, demanding money and menacing the family.  They shot up the house and left.  The first applicant later experienced a heart incident and spent a few days in hospital as a consequence. (He was admitted to hospital on [the next day].)[1]  He was in hospital for about a week and in recovery for about a month after that.  The incident was not reported to police, because they did not want to draw further trouble from the [Family B] Group.

    [1] Medical records from the [health service] have been provided at folios 66 - 86

    ·On [a date in] October 2010, a member of the [Family B] family ([Mr B]) was shot and killed in a gang clash.  The rival gang was [Group 1], several of whom are relatives of the second applicant.  The applicants confirmed that the second applicant’s brother, [Mr A], was a member of [Group 1], saying that he was ‘forced into it’ by his circumstances.  According to the evidence of the applicants, both the first applicant and the second applicant’s family were (and were known to be) quite well off.   A FIR (First Incident Report) from [Mr B’s] murder[2] names several people including [Mr A] and [Mr C] (the second applicant’s brothers) and also some of her cousins as the attackers of [Mr B].

    [2] FIR dated [in] October 2010 department file folio second 84.  There is an issue with the numbering in the Departmental File as some folios have been incorrectly numbered.  Folio 90 is wrongly numbered 80 and the numbering continues incorrectly from them, meaning there are two lots of documents numbered 80 – 89.

    ·After [Mr B’s] death, [Family B] group members terrorised people that they perceived as related to [Group 1] on the pretext of hunting for the killers.  They came to the applicants’ home and stole many belongings, including cash and jewellery. They warned them not to do anything about it, and said the first applicant would be implicated in the [Mr B] murder if he did so.

    ·Despite the warning, the first applicant decided to go in to the police to report the robbery.  On [a date in] October 2010 he went to report it.  He was immediately detained by police, but ‘unofficially’.  As noted above, the FIR for the [Mr B] murder named several people specifically (but not including the first applicant) related to the second applicant, including her brothers [Mr A] and [Mr C] and also referred to another group of ‘four unknown accused’.  It seems that by the time he went in to report the robbery, the first applicant had been identified as a suspect, potentially one of the four “unknown” accused.  He was detained unofficially from [October] 2010 to [November] 2010, until his wife hired a lawyer to force the authorities to locate and free him.  In that period, he was kept in a cell at the rear of the police station, denied medication and physically abused by police.  After his wife arranged for him to be located, he was freed from this ‘illegal’ detention but immediately re-arrested ‘legally’ for investigation in the [Mr B] murder.   This subsequent detention was for [number] days, but was in accordance with the law and he had access to his family, medication and legal advice.  At some point he was sent to [a named] Jail and was finally released on bail [in] January 2011. Whilst in [jail], a man there informed him that he had been enlisted by one of [Family B’s] sons to kill the first applicant but had decided not to.

    ·In early 2011, he and everyone related to the [Mr B] murder case were released.  The legal status of this case is still unclear to me.  The first applicant’s understanding of the legal process he underwent appears limited, but he claims and for the purposes of this review, I have proceeded on the basis that (a) he was found to be innocent of any charges and released and (b) no one has ever been found guilty of the [Mr B] murder.   The first applicant explained during the hearing that the reason for his clearance was because the police and court reached a conclusion that, given he was well known to all of the [Family B] gang members before the attack, he could not have been one of the ‘unknown accused’ people. That is, if he had been there, he would have been identified and named - so the court and police concluded he was not there at all.

    ·Whilst the first applicant was in illegal detention, the second applicant did not know where he was.  Her evidence is that she stayed in their home at that time.  The first applicant has stated that he believed she and the children had moved to stay with a friend when he did not return from reporting the robbery, and during which time their home was seized by people affiliated with the [Family B] Group, including the Criminal Investigation Branch of the local police.  The second applicant has stated that, it was only after the second applicant went into ‘legal’ detention and pending the legal proceedings that she moved out with the children to the home of a friend.  Regardless of when exactly it occurred, the evidence is that [Family B] supporters, including police officers, took over their home when it was empty and have since then refused to vacate it.  From the time of his first detention, the first applicant’s [Product 1] works had also been closed and has fallen into disrepair.   By the time he was released, it was further dilapidated and remains closed to the date of the hearing.  The first applicant says he tried to get their home back, but faced resistance and threats that they would re-open the [Mr B] case against him if he pushed.  They moved away from [Town 1] in early 2011 and stayed with friends in [Town 2] for a couple of months, moved to other addresses for short periods and eventually rented premises in [Town 3], Lahore.

    ·Everyone named and prosecuted (though cleared) in the [Mr B] murder moved away from the area, even the second applicant’s brother [Mr A].  However, [Mr A] later moved back home to [Town 1], with a security detail.     

    ·The first applicant told me that they still have some income from the land he owns; the lessees deposit the income directly into his bank account.  As noted above, he also gave evidence that he had previously owned a successful [Service 1] business, which he had not disclosed earlier in the review process because he did not feel it was necessary, and because he did not want to reveal it.  He was able to continue that business after his troubles with the [Family B] Group, because it was not based in [Town 1] – he owned [equipment] which were [used] by others who then paid him.  So the family continued to have a good income even after they left [Town 1]. 

    ·In July 2011, [Mr A] had [surgery] and while he was in recovery at home, (in [Town 1]) with armed guards protecting the property, the first applicant went to visit him.  Immediately on his arrival, the first applicant saw men scaling the outside fence and heard yelling and gunshots.  [Mr A] told him to get out.  He ran out the back and to a neighbour’s house.  From there he saw [Mr A] get dragged out of the house and shot repeatedly by [Family B] Group members.  One of [Mr A’s] guards was also shot and killed and another hit in the leg.  Another of the second applicant’s brothers was also shot in the leg.  The first applicant told me that he believes he was actually the true target of these men who swarmed on [Mr A’s] home.  He claims [Mr A] was killed because he didn’t tell them where the first applicant was – that they still wanted him because of ‘his millions’, and because he had never paid their demands - and also because they had paid good lawyers to successfully finalise the [Mr B] case and had avoided conviction.   

    ·After [Mr A’s] murder, an FIR was made[3], which named [number] people, including [members of the Family B] as the assailants.  The principal murderers of [Mr A] were also named.  According to the applicants, those men were arrested and charged, but the case was later dropped because [Mr A’s] Mr And wife and all witnesses were repeatedly threatened that if the case proceeded, they would be killed as well.  There were no witnesses prepared to give evidence against the [Family B] Group. The first applicant claims that he himself received phone calls in which he was warned to make sure he never gave evidence in that case or he would be killed. The applicants both claim that the [Family B] Group would seriously harm them if they return to Pakistan because of the risk (perceived by the [Family B] Group) that the applicants or members of the second applicant’s family may revive charges against them for [Mr A’s] death.  

    ·After [Mr A’s] death and funeral, the applicants stayed away from [Town 1].  They were not located by the [Family B] group, and the first applicant continued with his businesses, except the [Product 1] factory, which remained closed.  He told me that he never sold the [Product 1] factory building or even tried to sell their family home because he didn’t want to ‘make a loss’.   However he gave evidence at hearing that he did sell his business interest in the [Service 1] company before he travelled to [Country 1].  His evidence is that this sale has made them financially secure.  The first applicant stated that ‘we have no financial troubles today.’ 

    ·The applicants claim that they cannot return to Pakistan and relocate, because the [Family B] group have contacts throughout the country and even if they were not found, they would be living like fugitives, in fear and in hiding.

    ·[In] March 2013, the first applicant travelled to [Country 1] to visit with one of his daughters and her family.  In his statutory declaration lodged before the first tribunal, the first applicant states that his primary purpose for doing so was to seek protection there.  At the first hearing before Member Burns, he denied that he ever intended to seek protection in [Country 1].  The evidence is, regardless, that the first applicant did not seek protection in [Country 1].    He returned to Pakistan and then travelled back to [Country 1] [in] September 2013.  The applicants told the earlier Tribunal that in December 2013, his daughter was approached by a man who came to kill her, asked where ‘the old man’ is, and tried to hit her.   The first applicant claimed that he became afraid that it was related to his [Family B] group problems.[4]  He didn’t want to put her in danger so he returned to Pakistan [in] January 2014. 

    ·Shortly after he returned to Pakistan, on [a specified date in] January 2014, the first applicant, his son and his lawyer were shot at in the street by two unknown assailants in [Town 3], near his home.  The attack occurred in a public place and no words were said by the unrecognised attackers but the first applicant is adamant that he was the target of the attack.  An FIR was filed [later in] January 2014[5].

    ·[In] February 2014, the applicants travelled to Australia on [temporary] visas.  They applied for a protection visa on 17 March 2014.

    ·On 30 May 2014, the first applicant provided to the Department a letter suggesting that he had received information from ‘reliable sources’ that the [Family B] Group members had been bailed out and were found attempting to collect information about him and the residence of his children.   He gave evidence at hearing that he had received a call from a friend of the custodian of his children informing him that the custodian was fearful of being killed by the [Family B] Group and advising him to arrange to take the children to someone else as soon as possible.  The applicants requested a bridging visa to enable the second applicant to return and ensure the children were safely relocated.  This was granted and the second applicant returned to Pakistan [in] June 2014 and returned to Australia [in] September 2014.  At hearing, the applicants both confirmed that the friend with whom the children had been living told them that he had heard that the [Family B] group were still interested in locating the applicants and their family.   The second applicant took them from that friend and found them independent accommodation in Lahore.  

    [3] FIR dated [in] August 2011 Departmental file folio 100

    [4] Folio 30, second Departmental file.  The applicants have provided an email from their daughter about this incident.  It states that it occurred on [a date in] November 2013.  She describes being followed by an unknown man who yelled out ‘where is your dad come on tell me’, and that she and the children had to hide at a friend’s house until the police had searched for and failed to locate the man.  The email includes the police officer’s details to whom she reported the incident.

    [5] Folio 80, first Department file.

1. At hearing, the applicants informed me that, in the period since their protection interview, all of their children have now left Pakistan and the [youngest] were now living in [Country 2].  They left Pakistan about a year later.  They had not received any threats or been apparently located by the [Family B] group, but while in Pakistan, they were living in fear of that occurring.

2. I have considered the delegate’s decision and have read the transcripts of the first Tribunal hearings.  Both prior decision makers found that the applicants’ claims contained inconsistent and implausible material and rejected the majority of those claims.   The transcript of the previous Tribunal hearings is difficult to follow as there appeared to be some interpreting confusion and volume difficulties encountered in the transcription, but I consider that the applicants’ evidence about the principal incidents (save all evidence about the first applicant’s practice of the Ahmadi faith and fear of persecution on the basis of the first applicant’s faith) as given during our hearing was generally consistent with that given to Member Burns.     

3. The delegate did not accept that the first applicant is an Ahmadi.  They did not accept that the applicants were attacked in their home in September or November 2009.  The Delegate accepted that [Mr B] was murdered [in] October 2010 but not that the applicants were robbed [in] October 2010 or that the first applicant was later arrested illegally when he reported the incident.  The delegate only accepted the latter arrest [in] November 2010 as having occurred and not the earlier ‘illegal’ detention. The delegate found that the first applicant was of no interest to authorities in [Mr B’s] murder case after his release.  In relation to the seizure of their home, the delegate did not accept it, based largely on the applicants giving their legal address as the [Town 1] home even in their application for a [temporary] visa.  The delegate accepted that [Mr A] was murdered by the [Family B] Group.  They did not accept the approach to the applicants’ daughter in [Country 1] as credible.  In relation to the incident [in] January 2014, the delegate accepted that it occurred but noted that there is nothing to suggest that it was related to the applicants’ fear of harm from the [Family B] Group. 

4. The applicants provided a psychological report from consultant psychiatrist [Dr D] at [a named health service], dated 31 March 2016. [6]    [Dr D] had only met the first applicant once.  The Doctor diagnosed the first applicant as suffering from major depressive disorder of moderate severity with comorbid post-traumatic stress disorder, and recommended pharmacological treatment as well as ongoing psychological counselling.  No further psychological evidence has been received, and it is noted that, at the first hearings, the first applicant told Member Burns that he was not attending regular treatment nor taking anti-depressant medication, and made it clear that he did not accept that he had any mental health condition.  I note that [Dr D’s] report includes descriptions of the applicants’ (self-reported) experiences in Pakistan which are generally consistent with the events that they have described in their claims.

   [6] Page 86, first Tribunal file.

5. The applicants have, by their own admission, made and repeated claims that were untrue, namely those claims related to the first applicant’s faith as a reason for them fearing persecution in Pakistan.  They have also failed to give full details of their financial situation before the earlier decision makers as they did not disclose the full extent of the first applicant’s business interests and capacity to provide for his own and his family’s financial needs once they had left [Town 1]. I observe also that they both present as guarded and anxious when discussing their claims and consider that some caution must be exercised in assessing their credibility given the complex and distressing history they have described.   Even though he had previously denied both the diagnosis and the need for mental health treatment (before Member Burns) and did not raise his mental health anew before me, I have taken the first applicant’s mental health diagnosis into account in assessing his evidence.   I consider that his evidence was clear and coherent and that he displayed no sign of being inhibited by post-traumatic stress disorder or depression in providing his evidence.  Taking into account the evidence about the principal claims given at different stages, he appeared to have no memory deficits, given how consistently the claims were presented.    

6. In assessing the applicants’ credibility I am aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

7. The applicants’ history of affecting events is complex and spread over several years, involving distressing personal threats, assaults, the murder and attempted murder of family members and in the first applicant’s case, hospitalisation and incarceration.  As noted above, there is some medical evidence suggesting that the first applicant has been affected by post-traumatic stress and depression as a consequence of those events.  Bearing that in mind, I consider that, even if I might reject some of their claims and evidence as unreliable, this does not necessarily lead to me dismissing the whole of (or even the majority of) other of the applicants’ claims as credible: particularly where they have been consistently argued and are supported by documentary evidence. 

8. Having had the opportunity to consider the applicants’ evidence throughout the review process, I consider that the applicants have been generally consistent in describing the central aspects of their claims about their involvement with the [Family B] and [Group 1] (with the notable exception of their claim to have experienced and fearing harm because of the first applicant’s religion, further discussed below).  Additionally, they have provided significant supporting paperwork (principally the FIR’s and Court application documents) which is generally consistent with their central claims.  Based on the documentary support and the applicants’ evidence, I make the following findings on the various aspects of the applicants’ claims.

9. I accept that: 

   ·The applicants are citizens of Pakistan.

   ·The first applicant was a successful businessman in [Town 1] in 2005, with a lucrative [Product 1] factory, land which was leased and earning an income and also making income from a [Service 1] business.  The [Service 1] business did not operate in [Town 1].

   ·A criminal family group, referred to as the [Family B] Group, moved to [Town 1] in 2005, and started demanding or extorting protection money from the first applicant at his [Town 1] [Product 1] factory in 2007 and 2008.  He paid in those years but in 2009 he refused, or perhaps more correctly, ‘put them off’ until he could gather the money.  The [Family B] Group had involvement in arms and drug trades in [Town 1] and some of its members may have supported and had some links to extremist group Lashkar-e-Jangvi.

   ·The second applicant’s Family Bre (or were) members of a rival gang or group called the [Group 1] and also a prominent and financially successful [Town 1] family.  The [Group 1] also had involvement in arms and drug trades in [Town 1] and direct conflict with the [Family B] Group.

   ·In November 2009, members of the [Family B] Group terrorised the applicants’ family in their home, demanding the protection money which they claimed was ‘outstanding’.  The first applicant suffered a heart attack after the incident and spent one week in hospital and about a month in recovery.  The incident was not reported to police, out of fear of consequences.

   ·In October 2010, a member of the [Family B] family, ([Mr B]), was murdered.  After the murder, [Family B] Group members again terrorised the first applicant and his Family Bnd stole considerable personal property from them, but warned them not to report the theft or they would be implicated in [Mr B’s] murder.  When the first applicant went to report the robbery, he was arrested and illegally detained for approximately one month during which time he was deprived of medication, subjected to physical assault by police, and refused access to legal representation.  The second applicant could not find him and engaged legal representation which successfully obtained an order requiring his location and release and the first applicant was released [in] November 2010 from the illegal detention.  He was then detained legally for a further [number] days as a suspect in [Mr B’s] murder and then moved to a local prison.[7]   For the purposes of this review, I accept that the first applicant was informed by a fellow prisoner that the prisoner had been enlisted to kill the first applicant violently in prison, but that he decided not to do so once he got to know the first applicant.    The first applicant was finally released [in] January 2011.   He, with a number of [Group 1] members, (including members of the second applicant’s immediate and extended family) faced prosecution as a suspect in [Mr B’s] murder.  Ultimately, all those arrested and charged with [Mr B’s] murder, including the applicant, were cleared of the charges.  It is not clear to me whether the proceedings were formally determined or alternatively, whether the police and prosecutors reached a conclusion that the applicants were not guilty without a full trial.  In any event, I accept that the first applicant and his fellow accused were cleared of charges in relation to [Mr B’s] murder in early 2011.

   [7] Court orders and petitions have been provided substantiating these events: Folios 88 – 94.

   ·Whilst the first applicant was in custody, members of the [Family B] Group, including local officials or police affiliated with them, took over the applicants’ home and the [Product 1] factory fell into idleness and later disrepair.   The applicants have not sold either property and initial demands after the first applicant’s release from jail for the return of their home were rejected on warning that if they persisted, he would face renewed charges over [Mr B’s] murder by the [Family B] Group.   The applicants have not taken action to recover or sell their properties because of a fear that they will make a loss on such sales and also because doing so would draw them to the attention of the [Family B] Group who will potentially renew their attacks on them. 

   ·After they were cleared of charges in early 2011, the applicants and most of the second applicant’s relatives left [Town 1] and did not return.  The applicants and their immediate family moved between friends and different towns (including a friend in [Town 2], approximately [distance from Town 1]) for a while but then found accommodation in [Town 3], Lahore, where the first applicant continued his previous businesses (apart from his [Product 1] factory in [Town 1] which had fallen into dereliction).

   ·The second applicant’s brother, [Mr A], subsequently returned to live in [Town 1], but was shot and killed [in] August 2011 along with one of his bodyguards.  One of the second applicant’s brothers was also shot in the leg in that attack.   On that day, the first applicant was visiting [Mr A] and witnessed the incident.[8]

   ·No one has been found guilty of [Mr A’s] murder, and his wife, Mr And witnesses have been threatened with death if they proceeded with the trial.   The first applicant was named as a witness in the FIR filed about the attack.  He was subsequently threatened by phone not to give evidence in that case on penalty of his own death. Ultimately, all charges were withdrawn against [Mr A’s] killers due to intimidation and fear. It appears that the last of the arrested defendants were finally released in early 2014, after the applicants had left Pakistan. 

   ·The first applicant travelled to [Country 1] to visit his daughter in September 2013.  [In] November 2013, on a day he did not accompany his daughter and grandson to school as usual, his daughter was harassed by someone who asked ‘where the old man’ was, and who followed her, causing her fear that he wanted to harm her. However, based on her description of the event, I find that this person did not identify himself, what he wanted with ‘the old man’ or even name the first applicant – and that he did not hit or ‘try to kill her’ as the applicants claimed in their applications for protection.

   ·Members of the [Family B] Group plausibly still have an interest in the applicants, due to their ‘appropriation’ of and desire to keep their family home, the potential for the revival of the [Mr A] murder case, enmity against the applicants and their relatives due to the history of violence between the two ‘groups’, and because the first applicant has not complied with their extortion requests in the past and is viewed as a wealthy man.  

   ·In May 2014, the applicants heard from a reliable source -  the person with whom their children were living - that the [Family B] group was still attempting to collect information about the first applicant and the residence of his children. I accept that that person said that he had heard the [Family B] group members charged with [Mr A’s] death were bailed out and requested the applicants remove the applicants’ children from his custody because he was afraid that the [Family B] Group would seriously harm them and him.   The second applicant travelled back to Pakistan and arranged for new accommodation for their children in Lahore, before returning to Australia.   

   ·As far as the applicants are aware, the [Family B] group has not located or harmed any other member of their extended family, all of whom relocated away from [Town 1] after the murders of [Mr B] and [Mr A] and the consequences of those murders.  [A number] of the applicants’ children (young adults) lived without incident in Lahore (where their mother had relocated them in approximately July 2014) until relocating to [Country 2] in 2015.

   ·Some local police and authorities in [Town 1] are corrupted by the [Family B] Group, complicit in their offending, and provide them with protection from being held accountable for their criminal activities.

   ·The first applicant has been diagnosed as suffering from post-traumatic stress disorder and depression.  The first applicant is not currently undertaking any pharmacological or psychological treatment for those conditions and does not consider that he needs such treatment.

   [8] The FIR substantiating this murder is at folio 100 of the Department file. A list of the witnesses to the murder including the first applicant is at folio 103 of the Department file.

10. Based on the information and evidence before me as a whole; 

    ·I do not accept that the information and evidence before me establishes that the reason for [Mr A’s] murder was related to the applicant’s presence on the scene.  The applicants’ evidence suggests that the [Family B] Group had a number of cogent reasons to attack [Mr A] – such as his implication and acquittal in the death of [Mr B], his involvement in the [Group 1] and his membership of a prominent local [Town 1] family.  I found the first applicant’s assertion that they only attacked [Mr A] because the first applicant was there and they were still after ‘the first applicant’s millions’ to be implausible and I reject it.  Nonetheless, his naming as a witness to that murder on the FIR does provide a plausible reason why the [Family B] Group would seek to intimidate, threaten and harm the first applicant after [Mr A’s] murder, out of a concern that he may revive the [Mr A] murder case and give evidence against them.

    ·In relation to the incident in [Country 1] involving the applicant’s daughter, whilst it appears an incident of harassment has occurred and someone in [Country 1] seemed to be interested on that one occasion in the first applicant sufficiently to harass his daughter, I am not satisfied that the information and evidence before me establishes that this was in any way related to the applicants’ [Family B] Group problems or indicates that the first applicant had been located by them in [Country 1].   The evidence before me establishes that it occurred on [a date in] November 2013 and not in December as the first applicant had previously stated.  I have also taken into account that the first applicant remained in [Country 1] until [January] 2014, despite that incident occurring [in] November 2013.   I consider his remaining for so long after the incident weakens his claim to have left [Country 1] for fear of causing any further trouble for his daughter - and is more consistent with the incident being a random one, unrelated to his history with the [Family B] Group and viewed as such by the first applicant and his daughter.

    Fear of persecution on account of the first applicant’s Ahmadi faith.

11. At the commencement of our hearing, when both applicants were in the room, the first applicant indicated that the applicants abandoned their religious claims.  When asked what he meant by this, he said that, although he is of Ahmadi heritage, it has been many years since he claimed the faith.  He said that religion does not play a big role in his day to day life – he is not religious.  While living in Pakistan, he attended Sunni mosques and did not attend Ahmadi mosques.  He informed me that as part of his business practice, he also made donations to all local faiths; Ahmadi, Sunni and ‘even’ Christian.  The applicants confirmed that his wife’s family did not know of his Ahmadi heritage when they married.  Later, they discovered it, and some of them rejected them and refused to have anything to do with them after that.  The only brother who fully supported them was her [Mr A]. 

12. The first applicant said that he has not suffered persecution and does not really fear persecution on account of his Ahmadi heritage if he returns to Pakistan, because he keeps his heritage to himself (and is not religious) when in Pakistan. He gave evidence that even here in Australia he does not really practice any faith, and has very limited interaction with the Ahmadi community.  This evidence is in direct contradiction of evidence he had tendered in the review process (including both applicants giving evidence before Member Burns that he regularly attended an Ahmadi mosque in Australia and was involved in the local Ahmadi community.)  As part of the review process, I note that the applicants had also provided documentary support from the Ahmadi community suggesting he was an active Ahmadi community member in both Pakistan and Australia. 

13. Further, the applicants’ evidence before me was that, apart from some rejection by the second applicant’s family, (apart from [Mr A]) none of their claims of persecution were due to the first applicant’s faith.  The applicants gave evidence that the second applicant’s family rejected him when they discovered his heritage and consequently, it is likely that the second applicant’s family might be reluctant or refuse to acknowledge and support them if they return to Pakistan. 

14. After considering the applicants’ evidence about the first applicant’s alleged Ahmadi faith in the earlier hearing and also in the current hearing before me, the information before me as a whole and the applicants’ insistence on ‘abandoning their religious claims’, I make the following findings:

    ·I do not accept, as submitted by their first representative, that the reason the first applicant was initially targeted by the [Family B] Group for extortion was due to his faith or that his Ahmadi heritage was a factor in that extortion at all.  The applicant’s evidence is that his extorters did not know he was of Ahmadi heritage and he was targeted like all successful business people, and not because of his (actual or perceived) faith. 

    ·I do not accept that the reason for the applicant’s arrest [in] October 2010 was his faith as an Ahmadi.  Despite him saying so to the delegate, he has expressly stated in his evidence before me and I accept that the reason he was arrested and illegally detained [in] October 2010 was because he was reporting a [Family B] Group robbery and they made good on their threat to implicate him in [Mr B’s] murder as a consequence. 

    ·I do not accept that the first applicant is (or was) a practicing member of the Ahmadi community either here in Australia or in Pakistan. I have noted the comments in the first legal submission by [their representatives][9] which repeatedly refers to the applicants facing and experiencing persecution because of the first applicant’s Ahmadi faith.  Based on his direct evidence and taking into account the description in his passport of him as being of Islam faith, I find that the first applicant has always presented himself as and would be perceived as a Sunni Muslim in Pakistan.  I find that he is not particularly religious.  He gave evidence that he does not practice any faith in Australia but would again resume practicing as a Sunni if he returned to Pakistan because that is what he has always done.  His evidence supports a finding that, if he returned to Pakistan and attends mosque, it would be a Sunni Mosque and he would make that choice out of social expectation and his own lack of commitment to practicing the Ahmadi faith and not because of a fear of persecution.   I accept this part of his evidence and I reject those claims made throughout the review process which suggest that he and the second applicant have faced prosecution, discrimination or other harm in Pakistan due to the first applicant’s faith or because he is perceived as an Ahmadi, or that they fear any harm on that basis on return. 

    ·I find that the donation receipts[10] are not evidence of him being an Ahmadi community member, but rather reflect his contribution to his local community and are only some of many donations he made to various faith groups.  I accept his evidence that he also made similar donations to all religious communities in his role as a prominent businessman in [Town 1].  I also consider the text messages, letter from the Ahmadi authority[11] and photographs provided by the applicants are not evidence which satisfy me that the first applicant is an active and involved member of the Australian Ahmadi community, in light of his own evidence to the contrary.

    ·The second applicant is a Sunni Muslim and the information and evidence before me does not suggest she has experienced or would experience persecution of any kind due to her faith. I accept that she has been ostracised by most of her family because she married a man of Ahmadi heritage.

    ·After considering the evidence before me, I do not accept the applicants’ claim that either applicant fears that they would be or that there is a real chance that they would be seriously harmed by any particular persecutor if they return to Pakistan because of the first applicant’s Ahmadi heritage or the second applicant’s Sunni faith.  I do accept that the surviving members of the second applicant’s family could potentially refuse to acknowledge or support them (as they have in the past) if they return to Pakistan because of the first applicant’s Ahmadi heritage.  Based on the applicants’ evidence and the family’s past conduct I do not accept that there is any chance that the second applicant’s family will harm the applicants or reveal what they know about his heritage.  I also do not accept that the applicants have a subjective fear of being persecuted on account of the first applicant’s faith.

    [9] Folio 152 first Departmental File

    [10] Receipts at pages 104 – 102 of the first AAT file, and at folios 32-44 of the Second Departmental file.

    [11] At page 124 and following of the first AAT file.

    Consideration of Claims

1. I have accepted the applicants’ claims that they have experienced assault and extortion, that members of their family have been killed, assaulted, robbed and prosecuted by members of a gang called [Family B] Group in [Town 1], Punjab and by persons (including local police officers) associated with them.  I accept their claim that they were still of interest to the [Family B] Group in 2014 and potentially may still be of interest to the group if they were to return to [Town 1], due to the long and complex history they have with the group (including their ownership of property claimed by the group and a perception that they would revive the [Mr A] murder case).  I have accepted that the first applicant has been diagnosed with depression and post-traumatic stress disorder in Australia but does not accept the diagnosis and has not been receiving treatment for these conditions. I have accepted that the first applicant is of Ahmadi heritage but, based on the information and evidence before me, I have not accepted their claim that either applicant would be seriously harmed by any particular persecutor in Pakistan because of the first applicant’s Ahmadi heritage or the second applicant’s Sunni faith, now or in the reasonably foreseeable future.  I accept that it is plausible, nonetheless, that members of the second applicant’s family may refuse to assist and support them if they return to Pakistan due to his being of Ahmadi heritage. 

2. The persecution that they fear, namely being killed, extorted and assaulted is serious harm as required by s.91R(1)(b).  Their accepted claims disclose a history of being targeted and subjected to physical and financial assault by [Family B] Group members.   I am satisfied that the persecution that they fear involves systematic and discriminatory conduct as required by s.91R(1)(c).

3. The essential and significant reason for the persecution they fear must be for one or more of the refugee reasons (s.91R(1)(a)).  The reason for the harm the applicants fear is their personal and direct family history of conflict with members of the gang known as the [Family B] Group in [Town 1], Punjab and their familial relationship with some members of the  opposing gang, [Group 1].  I do not accept that the first applicant’s faith is an essential or significant reason for the harm that they fear or even one of those reasons. 

4. I have considered whether the applicants, as members of families who are opponents or perceived opponents of the [Family B] Group, are members of a particular social group as described in the Refugee Convention.  I note the comments of Gleeson CJ, Gummow and Kirby JJ in the joint judgment in Applicant S v MIMA:

   First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.[12]

   [12] Applicant S v MIMA (2004) 217 CLR 387 at [36].

5. The first applicant was initially targeted for exploitation due to him being a successful member of the [Town 1] business community.  Later he was targeted due to his refusal to comply with extortion requests and also because he was related by marriage to members of a rival family.  I accept that the applicants are readily identifiable in the area as members of those [Town 1] families and distinguishable from society at large – both because they are well known in the local community generally due to their being from prominent families, as well as being known in the area due to the criminal and court history between the [Family B] and [Group 1]. 

6. I am satisfied that the essential and significant reason for the persecution the applicants fear is their membership of the particular social group of the [two named] Family groups, who are opposed to and have been in conflict with the [Family B] Group ( a criminal gang) in [Town 1], Punjab, Pakistan.

   Is there a real chance of persecution? 

7. Based on the applicants’ accepted claims and history of experiencing serious harm from the [Family B] Group as outlined above, I am satisfied on the evidence before me that the [Family B] Group would plausibly retain an interest in the applicants and that there is a real chance that they would assault, extort or otherwise seriously harm them if they were to return to [Town 1]. In that event, (their return to [Town 1] and being exposed to ongoing persecution by the [Family B] Group) I also consider that there is some chance that the first applicant would experience a worsening of his mental health condition (even considering his denial of that diagnosis), potentially requiring attention and treatment. 

8. However,  I consider that the real chance of serious harm is localised in the [Town 1] area, and in reaching that conclusion, I have given consideration to and taken into account that:

   ·The applicants confirmed that they remained living within [distance] from [Town 1] between early 2011 and 2014.  During that period, they lived with friends, at one or two other properties, and then rented a property in [Town 3], Lahore which was [approximate distance] from [Town 1].  They were still renting that property up until they departed the country.  I consider that the fact that they remained so close to [Town 1] between 2011 and 2014 and were not in that time attacked by the [Family B] Group, (despite that being the period during when their persecutors’ desire for revenge would plausibly be at its’ peak) weakens their claim that the [Family B] Group was capable of harming them ‘throughout Pakistan’.   The applicants’ evidence is and I have accepted as plausible that the first applicant received some phone threats warning him not to give evidence in the [Mr A] case, and I have taken that into account.

   ·I have not accepted that the incident in [Country 1] involving their daughter was in any way related to their difficulties with the [Family B] Group. 

   ·Whilst I accept that the first applicant, with his son and lawyer, were the victims of a ‘drive by’ shooting in January 2014 in Lahore, I do not consider that he has established that (or that it is plausible that) this was in any way related to his previous [Family B] Group conflict or even that he himself (and not his lawyer) was the target of the attack. In fact, I consider that the evidence suggests that it was an attack of a random nature made for unknown reasons. The evidence before me does not suggest that the first applicant was targeted for any other reason or that he would be targeted again in the future in the same way. I consider that, if he actually believed the [Family B] Group could locate him throughout Pakistan, or that the January 2014 attack perpetrators were from or related to the [Family B] Group, it is not logical or plausible that he would then risk identifying his new home area and lodge an FIR about the incident (which he did, even naming ‘his home town’ [Town 3]; and his former address in [Town 1]) when his lawyer could just as easily have lodged the FIR. I also note and give considerable weight to the fact that no allegations of [Family B] Group involvement were included in the FIR - which referred instead to unknown assailants,[13] and to the applicants’ evidence that despite this attack and the FIR openly describing their new area of residence and their former address in [Town 1], the applicants’ evidence before me was that they remained in [Town 3] until they left the country.

   ·In mid-2014, the applicants chose to relocate their children (who were and are actually young adults and not infant children) in Lahore, despite having been notified that the [Family B] Group were ‘interested’ in locating and potentially looking for them, and that their custodian was concerned for his own safety as a consequence.   I consider this to be a strong indication that the applicants did not believe that the [Family B] Group had the capacity to locate and harm the children in Lahore, or that the group was even aware that the applicants had lived in Lahore after leaving [Town 1].  I also note and give weight to the fact that the children then lived in Lahore after the second applicant left for approximately one year and based on their own evidence, were not located or harassed by the [Family B] Group before leaving the country. I consider these various factors to suggest that, despite the applicants’ claims to the contrary, the influence of the [Family B] Group (and those associated with them including local police) is localised in [Town 1] and does not extend beyond that city, even to Lahore. 

   ·I have taken into consideration that the evidence before me is that other members of the second applicants’ family have relocated to other cities in Pakistan and have not been traced by nor had any further difficulties with the [Family B] Group since 2011.  I consider that this also suggests that the influence of the [Family B] Group (and their associates) and their capacity to persecute their enemies is limited to [Town 1] itself and does not extend ‘throughout the country’ as the applicants claim. 

   ·The applicants do retain some assets in [Town 1], and have made it clear they will not return there to live.  Whilst the first applicant indicated that he had so far decided not to sell the home and the land on which the [Product 1] factory is located due to his desire to avoid a loss and to keep a low profile from the [Family B] Group, I have taken into account that he may choose to do so in the future, in order to cut all ties with [Town 1]. I have taken this possibility into account and that his selling the properties would draw him to the renewed attention of the [Family B] Group, but consider that there are steps the applicants could and would take to do so whilst remaining out of the immediate area (such as using a lawyer/realtor intermediary in the sale) which would avoid any chance of them being attacked by the [Family B] Group in [Town 1] or his current address being located by them if they acted to sell one or both of the properties.

   ·In a submission by the applicant’s second legal representative before the first Tribunal,[14] it was alleged that the [Family B] Group is connected with and linked to Lashkar-e-Jangvi (LeJ), a sectarian terrorist organisation active throughout Pakistan[15].  I have considered the information and evidence before me and I find that the applicants have not provided evidence in support of such a claim, or which supports any such connection and I do not accept it. As noted by DFAT, LeJ’s principal concern is in opposing Shi’a citizens though it is not solely restricted to that faith or sect.   Whilst it is possible that some members of the [Family B] Group ideologically support the LeJ, the applicants have specifically denied that they have been targeted on account of the second applicant’s Ahmadi heritage. I find that the information before me reflects that the [Family B] Group is a family based criminal gang active in and whose influence is limited to [Town 1], regardless of whether its members ideologically support extremist groups (including LeJ) outside the region.   I do not accept the claim that, through any such ‘links’ to LeJ, the [Family B] Group are ‘active throughout Pakistan’.

   ·I have also considered their claim that they would have to ‘live in hiding’ if they returned.  I do not consider that they would be required to ‘live in hiding’ and have to relocate regularly as they claim, or that such requirements would make it unreasonable for them to relocate within Pakistan.  In reaching that conclusion, I note my findings above about the localised nature of the threat, their conduct before coming to Australia, and I have also given regard to the passage of time, and the possibility that despite the passage of several years, the group may continue to hold a grudge and desire to harm the applicants, particularly due to the possibility that the applicants may seek to revive the [Mr A] murder case.  Based on their evidence about their past experiences and that of other relatives of [Mr A], I do not consider that there is any chance that the applicants would do so, (seek to revive the [Mr A] murder case) but have nonetheless taken that possibility into account.   For the reasons given above, I consider that the [Family B] Group’s sphere of influence is limited to [Town 1] and that even if they did seek to agitate the [Mr A] case, (which I do not accept that they would) they would do so from a location outside of the area and away from influence of the [Family B] Group or corrupt local police.

   ·The first applicant was not receiving mental health treatment prior to leaving Pakistan and has not been receiving such treatment in Australia.  I do not consider that the applicants have established that there is a real chance that the first applicant will experience a deterioration of his mental health at a level which would cause him ‘serious harm’ if he returns to and resides in an area of Pakistan outside [Town 1].   I do not accept that there is a real chance that he will suffer serious harm outside of [Town 1] (either as a result of a worsening of his mental health conditions or inability to receive treatment for any such worsening) due to his mental health. 

   [13] FIR Report folio 80, first Department file.

   [14] Page 51 of the first AAT file

   [15] DFAT report at 2.89:  Lashkar-e-Jhangvi (LeJ), a Sunni paramilitary terrorist group, conducted seven terrorist attacks in 2018 (compared to 10 in 2017. LeJ faction, LeJ Al-Alami, also conducted 8 terrorist attacks in 2017). LeJ primarily targets Shi’a, especially the Hazara community in Quetta, and also acts against Christians, Ahmadis and Sufi Muslims. In total, the two groups were responsible for killing 132 people. ISKP reportedly supported LeJ as a proxy in Afghanistan to target Shia.

9. I have also considered whether the first applicant’s Ahmadi heritage means that he faces a real chance of persecution outside of [Town 1].  Country information reflects that Ahmadi citizens are reported to face official and social discrimination and violence throughout Pakistan.[16] The evidence is that the first applicant has not faced persecution in Pakistan in the past due to his faith or Ahmadi heritage, though he has experienced some social exclusion by his wife’s family.  I note the repeated evidence before me that the applicants wish to abandon all religious claims.   The fist applicant also gave evidence that he is not religious and would not acknowledge his Ahmadi heritage nor practice the faith in Pakistan.  Based on his evidence overall, I have significant doubt that the first applicant actually considers himself an Ahmadi, despite his heritage.  His passport reflects his faith as Islam[17] which, officially at least, reflects that he is not identified by the Pakistan Government as being an Ahmadi citizen.  Consequently, I do not consider that there is a real chance that he would face official discrimination on that basis.  His evidence and his previous conduct suggest that the first applicant would continue his practice of attending Sunni mosques, whilst making contributions to all faiths in any new business area.  I am satisfied that his reasons for doing so would not be because of a fear of persecution – but would more pragmatically be to further his social and business interests given that he does not hold strong religious allegiance to any sect or faith. Taking into account his own evidence about his lack of devotion to his Ahmadi faith and his past and current conduct in failing to practice that faith, I find that the first applicant would continue as he has always done, keeping his heritage to himself and presenting as a Sunni citizen of Pakistan.  I do not accept the applicants’ claims that there is a real chance of them suffering serious harm in Pakistan because of the first applicant’s faith.

   [16] DFAT’s most recent report refers, at 3.113:  “DFAT assesses that Ahmadis in Pakistan face a high risk of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political and social engagement. DFAT assesses that Ahmadis face a high risk of societal discrimination and violence, which intensified in late 2017 and increased in 2018 as a result of the major Khatm-e-Nabuwat protests at the end of 2017 and the 2018 election.”

   [17] Folio 171, Departmental File.

10. The applicants claimed that the [Family B] Group could find them wherever they go in Pakistan.  I do not accept this claim and am satisfied that the [Family B] Group have neither the capacity nor influence to persecute the applicants outside of their home town of [Town 1].  I find that the real chance of persecution in this case is localised in the region of [Town 1] where the [Family B] Group (and those associated with them including corrupt police) operate.  I have found that the applicants do not face a real chance of serious harm because of the first applicant’s faith in Pakistan.   Given that I have found the real chance of persecution to be localised in [Town 1], I have therefore considered whether it is reasonable for the applicants to relocate to another part of Pakistan in order to avoid the persecution they fear. 

11. The Department of Foreign Affairs and Trade’s most recent country information report[18] provides as follows in relation to relocation within Pakistan:

    5.31 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common.

    5.32 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.   

    [18] Country Information Report, Pakistan 20 February 2019

12. The applicants’ children are adults and now settled in [Country 2], and so on return the applicants would only need to find accommodation for themselves.  The applicants have given evidence that they still have significant financial resources from the sale of the first applicant’s [Service 1] business and also from the land they own.  I am satisfied that they have financial resources readily available from which they could support themselves on return to Pakistan without facing hardship.   I note they also have unrealised assets in the properties they own in [Town 1] (the family home and the [Product 1] factory) which could potentially be sold in future  to provide for their new life, but I have also given consideration to the fact that there may be some complicating factors in the sale of the family home given the claims made by other persons on that property and the applicants’ desire not to sell the property ‘at a loss’, as well as their desire not to draw attention to themselves if they return to Pakistan.   I do not consider that they necessarily need to realise those assets to finance or support their relocation within Pakistan.   I have also considered and accept that it is plausible that they may not receive any financial or other support from the second applicant’s family due to their rejection of the first applicant.  However, I do not consider that such support is a factor which would be necessary to them safely or reasonably relocating or which would make it unreasonable for them to return to Pakistan.   This is because the evidence is that they have been financially self-reliant and have not relied on family support (emotional or financial) for many years, even before they came into conflict with the [Family B] Group.   I also note and have taken into account that other members of the Family Bnd persons who had conflict with the same group have relocated within Pakistan to large cities and re-established themselves there without ongoing persecution from the [Family B] Group, suggesting that the applicants could also do so. 

1. I acknowledge and have considered that the applicants are in their [age range], their desire to remain in Australia and that they might encounter some hardship in ‘re-establishing’ themselves in Pakistan.  I have also taken into account their respective health concerns.  According to the medical evidence tendered by the applicants during the first hearing they each suffer from [Medical Condition 1] and the first applicant has [Medical Condition 2].  The applicants confirmed that they could receive treatment in Pakistan for their medical conditions.   According to the psychiatric report the first applicant also suffers from post-traumatic stress disorder and depression.    The evidence is that he did not accept the diagnosis and was not receiving any treatment for mental health conditions at the time of the first tribunal review, and I have not accepted that there is a real chance of him suffering serious harm due to his mental health if they return to and reside a part of Pakistan outside [Town 1].    

2. I have not accepted that there is a real chance of serious harm outside of [Town 1], or that they would be required to ‘live in hiding’ and have to relocate regularly as they claim.  I have also given regard to the passage of time, and the possibility that the group may continue to hold a grudge and desire to harm the applicants though I consider that their sphere of influence is limited to [Town 1].

3. I have also considered the first applicant’s Ahmadi heritage, and how or whether it would impact on the reasonableness of relocation.   As noted above, and because of the first applicant’s own evidence about his previous and future conduct, I have found that there is not a real chance that that the applicants would be persecuted because of his religion anywhere in Pakistan. I have noted and accept that the first applicant would practice as and be perceived as a Sunni citizen if he returned to Pakistan.  His passport reflects his faith as Islam[19] which, officially reflects that he is not identified by the Pakistan Government as being Ahmadi.  Based on the evidence before me, I do not consider that the first applicant’s faith (or his Ahmadi heritage) is a factor which makes it unreasonable or impracticable for the applicants to relocate within Pakistan. 

   [19] Folio 171 Departmental File

4. I have found that the [Family B] Group may have some interest in the applicants, but that the real chance of serious harm from them is limited to [Town 1].  Whilst proximity to [Town 1] (and thus to that chance of harm) will no doubt influence and inform their residential choices in future, I am not satisfied that the chance of harm from the [Family B] Group outside of [Town 1] (which I consider to be remote) makes it unreasonable or impracticable for the applicants to relocate within Pakistan.   

5. In SZATV v MIAC, the majority of the High Court approved of the following explanation:

   [I]f a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.[20]

   [20] Januzi v SSHD [2006] 2 AC 426 at 440, cited with approval in SZATV v MIAC (2007) 233 CLR 18 per Gummow, Hayne and Crennan JJ (Callinan J agreeing) at [19].

6. Thus, if it is not reasonable for a person who has a well-founded fear in part of a country to relocate to another part, then the person’s fear of persecution in relation to the country as a whole is well-founded.[21] Conversely, if it is reasonable for the applicant to relocate to another part of the country then that applicant’s fear is not well-founded.

   [21] Randhawa v MILGEA (1994) 52 FCR 437 at 443.

7. After taking into account all of their circumstances, I consider that the applicants could reasonably relocate elsewhere in Punjab State or throughout Pakistan where they would not face a real chance of persecution. Practical access to large urban places throughout Pakistan apart from Lahore (such as Islamabad or Karachi) is available by direct commercial flight and without restriction for Pakistani citizens.  The applicants have not suggested any legal or other impediment to their relocating away from [Town 1] apart from their stated fear of being located by the [Family B] Group and a lack of support from the second applicant’s family.  I have considered the applicants’ claims jointly and independently and also cumulatively.   I consider that the applicants could reasonably relocate within Pakistan to avoid the persecution they fear.   I therefore conclude that the applicants do not have a well-founded fear of persecution in Pakistan.

8. The applicants do not meet the criteria in s.36(2)(a) of the Act.

   Complementary Protection

9. I have also considered the provisions of s.36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Pakistan, there is a real risk that they will suffer significant harm.

10. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

11. I am satisfied that the harm they fear (being arbitrarily deprived of their lives, subjected to cruel and degrading treatment or conduct and to humiliating treatment or conduct in the form of threats, intimidation and physical assault) is significant harm, and that there is a real risk that they would suffer significant harm from the [Family B] Group or people associated with them (including corrupt local police officers) and also potentially in the form of the first applicant suffering deterioration of his mental health if they were to return to [Town 1].  However for the same reasons as given above when discussing the real chance of serious harm under the refugee definition, I find that the real risk of significant harm is localised in [Town 1].   Additionally, and for the reasons given above when discussing their evidence and the first applicant’s faith, I also find that there is not a real risk that they would suffer significant harm in Pakistan due to the first applicant’s Ahmadi heritage.  The evidence before me does not suggest and I am not satisfied that the applicants face a real risk of harm (significant or otherwise) for any other reason outside of [Town 1].

12. S.36(2B) provides that there is taken not to be a real risk that a person will suffer significant harm if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that they will suffer significant harm.  I refer to and rely on my discussion and findings about the reasonableness of relocation in considering the refugee provisions.  I find that it would be reasonable as well as practicable for the applicants to relocate to an area of the country away from [Town 1] where there is not a real risk that they will suffer significant harm.  The information and evidence before me does not raise any other harm (significant or otherwise) which the applicants will suffer in relocating outside of [Town 1]. I have considered the applicants’ claims jointly and independently and also cumulatively.  In all the circumstances, and based on my findings above, I do not accept that there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan. 

13. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Anne Grant
    Member