1826312 (Refugee)

1826312 (Refugee) [2020] AATA 2015 (8 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826312
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Sean Baker
DATE:8 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 08 April 2020 at 10:35pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – mere statistical analysis – characteristics of the Applicant or circumstances of the case – imputed political opinion – particular social group – long-term residence and received education in Australia – fear of Taliban and other extremist groups – children born overseas – Australian citizen child – risk of terror attacks, kidnapping or other crime – improvement of general security situation in Karachi and Sindh – imputed religion – Shia Muslim – specified family name – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 November 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 15 January 2015. The delegate refused to grant the visas on the basis that the delegate considered the claims of the applicants but did not find them to be well-founded and considered the delay in seeking protection did not indicate a genuine fear on the part of the applicants.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants have a well-founded fear of persecution if returned to Pakistan, or there is a real risk they will suffer significant harm if returned to Pakistan. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
[The first named applicant] and [the second named applicant] provided copies of their Pakistani passports. The two children, [the third named applicant] and [the fourth named applicant], were born in Australia. I accept that the applicants are who they claim to be.
Applicants one and two are citizens of Pakistan, as evidenced by their Pakistani passports. As they are making the primary claims, I consider Pakistan to be the country of reference/receiving country.
At the hearings before me they provided the Victorian birth certificate of applicant four, [the fourth named applicant], and the Australian citizenship certificate of applicant three, [the third named applicant].
I accept on the basis of his Australian citizenship certificate that applicant three, has gained Australian citizenship. Applicant four, [the fourth named applicant] is entitled to Pakistani citizenship on the basis of being born to a Pakistani father.
There is no material before me to indicate that applicants one and two can avail themselves of a right to enter and reside in any third country. I find they do not have such a right. The situation of applicant three and four is dealt with below.
Before leaving Pakistan, the applicants lived in Karachi, Sindh province. I find that this is their home area and that they would return here if they return to Pakistan.
Claims and consideration
The first named applicant made claims at the Department stage which can be summarised as follows:
·The applicant claims to fear she and her family would be killed by the Taliban and/or other extremist groups if they were to return to Pakistan. She claims that this would occur because they have resided and received education in Australia;
·The applicant claims she will be targeted by the Taliban and other extremist groups because she has studied [Discipline 1] in Australia;
·The applicant claims her two children will be targeted and attacked by the Taliban and other extremist groups if they return to Pakistan because they were both born in Australia;
·The applicant claims there is no law and order in Pakistan and the Taliban have openly warned to kill anyone found to be associated with western nations;
·The applicant claims Pakistani citizens with the same family name as the applicant, [Family Name 1], are targeted and killed by the Taliban and extremist groups in Pakistan;
·The applicant claims the Pakistani authorities are too afraid, corrupt or unwilling to protect them as they are unable able to control the Taliban or other extremist groups. She claims the Pakistan authorities have failed to protect politicians, government officials and police personnel and therefore are unable to protect citizens of Pakistan;
The applicants made clear at the hearing before me (as they have done in previous hearings) that the first named applicant was the one making the main claims, despite many of those claims, as below, regarding the situation of the whole family or of the children. I have assessed claims as they relate to the applicants.
The applicants submitted to the Department Pakistan news reports and articles regarding the generalised violence and current security situation in Pakistan to support their claims for protection.
The previous Tribunal was constituted by a member who then became unavailable. The matter was reconstituted and heard again by a member who then decided the case. The applicants provided news reports about terrorist attacks in 2015, 2016 and 2017 and the situation for militants in Pakistan, news reports on Pakistanis joining Daesh/IS, claims of IS recruiting thousands in Pakistan, links between TTP and IS, and various criminal activities in various Pakistan locations. The articles were dated 2015, 2016 and 2017.
The previous Tribunal affirmed the decision. That Tribunal accepted that the applicants may have a subjective fear of returning to Pakistan due to the range of violent incidents including terrorist attacks that have occurred over the past several years in Pakistan. However, having regard to the decline in attacks and casualties since the commencement of Zarb-e Azb and Ranger operations, the number of attacks and casualties vis-a-vis the size of the population, the absence of any past harm to the applicant, the fact she is not a target of militant or sectarian violence – she is of the majority religion, major ethnicity and not involved with any political party – and as that Tribunal was satisfied she had no other profile which would cause her to be targeted for harm, that Tribunal did not accept the applicant or her family members faced a real chance of serious harm or a real risk the applicant or her family members will suffer significant harm if returned to Pakistan.
This matter was remitted by consent from the court on the basis that the decision of the previous Tribunal was affected by jurisdictional error in that the assessment of the harm the Applicant may face in Karachi was merely a statistical analysis based on the size of Karachi's population, without having regard to the characteristics of the Applicant or circumstances of the case.[1]
[1] Consistent with DZADQ v Minister for Immigration and Border Protection [2014] FCA 754, this is insufficient to draw a conclusion that there is no real chance of persecution.
At the first hearing before me, the applicants provided a copy of the consent orders. [The first named applicant] explained that they had believed the remittal from the court meant that they were to be granted the visas. I explained that this was not the case. The applicants then asked for more time so they could prepare their case. In the circumstances and taking account of the fact that they are unrepresented, I agreed to the adjournment request. [The first named applicant] explained that she had been on [medications]since 2012 and her mental health was poor. I asked her whether her claims remained the same from the previous Tribunal or whether they had changed. She said she could not remember her claims. I summarised them for her and she said she was not sure if there were any other claims she wanted to put forward.
At the second hearing, the applicants submitted further news reports, in relation to terror attacks in various parts of Pakistan in 2017, 2018 and 2019, including the attack on the Chinese Consulate in Karachi in November 2018, an attack on a bus in Karachi in May 2015 in which at least 43 Shia were killed and IS claimed responsibility, and news reports about earlier terrorist incidents throughout Pakistan, some of these articles had been previously provided. Also included were printouts of the travel advisories from the Australian and New Zealand governments urging people to reconsider travel to Pakistan.
At that hearing I asked the first applicant (the applicant) if she had suffered any harm in the past in Pakistan. She spoke in general terms about the risks to girls going out after sunset. When prompted to speak of her experiences, she said once she had been on the street late and a man was trying to harass her, this was very common. She said once her brother was out at 11am and there was a shooting and his leg was seriously injured and he had to go to hospital. She said one of her cousins was playing near a wedding, there was a bomb and his leg was shattered and he had to be hospitalised for several months. She said that these things had all happened a long time ago.
Harm on the basis of their long-term residence in Australia
The applicants claim to fear harm from the Taliban and other extremist groups because the applicants have resided long term in Australia and because the first named applicant received education in Australia, specifically, she claims that she will be targeted for harm because she studied [Discipline 1] in Australia.
At the hearing the applicants said that they had lived in Australia since 2007, that they had not travelled back to Pakistan since they arrived, that their sons had been born here and one son was an Australian citizen by virtue of having lived here for ten years. She said she was worried because they had lived for a long time in Australia and would be targeted if they returned.
I discussed with the applicants the country information which indicates that many Pakistanis live overseas for considerable periods before returning to Pakistan,[2] Western culture such as TV is watched throughout Pakistan and the Pakistan media promotes western values,[3] that globalization is viewed as a step towards progress by a significant portion of Pakistanis,[4] and that DFAT assessed that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country,[5] and that there is no country information to support the Taliban or other fundamentalist groups of targeting people on account of their having resided in a Western Country.[6] Western influence has become pervasive in Pakistan. I noted that I may infer that there were a large number of Pakistanis who had studied overseas, and who could be considered westernised but the country information suggested that they did not face a significant risk of societal violence or other violence such as harm from the Taliban.
[2] Bivand Erdal, M., 2016, ‘Juxtaposing Pakistani diaspora policy with migrants’ transnational citizenship practices’, Geoforum, Volume 76, November 2016, Pages 1-10, Naeema F, Gobbic M, Ayub M, and Kingdona D 2009, ‘University students’ views about compatibility of cognitive behaviour therapy (CBT) with their personal, social and religious values (a study from Pakistan)’, Mental Health, Religion & Culture, Vol. 12, No. p.853
[4] 53% Pakistanis believe that the country’s youth have become westernized; 36% believe that they remain loyal to their culture.’ 2013, Gallup Pakistan, 9 September
[5] DFAT Country Information Report Pakistan, 20 February 2019, 5.45.
[6] COISS Report, Pakistan: Western Values – Returnees, 23 March 2015 - CI150313142225972.
The first named applicant responded that she never felt safe, which was why she had never left Australia once she had arrived. She said that she felt fear about returning. I noted that I was sympathetic to this but that the question was whether there were actual reasons for the fear, or a real risk of harm.
The first named applicant also claimed that she would be targeted because she had studied [Discipline 1] in Australia and health professionals are targeted for harm by the Taliban and other extremist groups. At the hearing with me she conceded that she had not completed her [Discipline 1] studies and had only done some temporary work [here]. She conceded that she would not be working as a [Occupation 1] if she returned to Pakistan.
I have had regard to the applicants’ claims and the first named applicant’s evidence to me and the previous Tribunals. I have had regard to the country information. I accept that the first and second named applicants have lived in Australia since 2007 and that the children were born here and the eldest is an Australian citizen, and that the applicants have received education in Australia. I understand that the applicants are apprehensive of returning to Pakistan. However, the country information does not support their claim in this regard. I find that the country information establishes that western influence is pervasive in Pakistan, and that the country information does not demonstrate that the Taliban or any other extremist group target people solely on account of their having resided in a Western Country. I consider the most recent DFAT report mirrors and supports this conclusion when it states that their assessment is that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. As many returnees from Pakistan have studied in Australia and elsewhere, I also infer from this country information that the risk of violence or harm is also not significant for those who have studied in Western countries. I have also considered the first named applicant’s claims that she will be harmed for having studied in Australia and having studied [Discipline 1]. She conceded at the hearing before me that she had not completed her [Discipline 1] education and had only worked doing some temporary [work]. Having regard to the country information, I consider that there is no basis to conclude that study in a foreign country, including Australia, would lead to someone being targeted for harm on return to Pakistan, by the Taliban or anyone else.
Whilst it is true that there are reports of medical professionals being targeted by extremist groups in Pakistan, [the] applicant conceded that she has not completed her [Discipline 1] education and would not work as a health professional on return to Pakistan. Whilst I accept that she has done some [Discipline 1] studies and may have worked [in] Australia, I find that there is no basis to conclude that this will lead to her being harmed on return to Pakistan nor that it increases the risk of her being harmed because I do not accept that there is any way in which the Taliban or other extremists would become aware or would be motivated to find out that she has studied [Discipline 1] in Australia and worked [in] Australia. Further, I find that the Taliban and other extremist groups target health workers in Pakistan because of the health work such as administering vaccines that these professionals undertake, and as the first named applicant conceded, she would not be working as a health professional if she returned to Pakistan now or in the reasonably foreseeable future. These findings allow me to find with confidence that the first named applicant will not be harmed for reasons of her [Discipline 1] studies in Australia or her temporary [work] done here.
On the information before me, and assessing the country information above, I find that there is no real chance of the applicants being seriously harmed for reasons of their imputed political opinion or membership of any particular social group on the basis of having resided long term in Australia and received education in Australia if they are returned to Pakistan, now or in the reasonably foreseeable future. Further, I find on the same basis that there is no real risk that they will suffer significant harm on this basis if they are returned from Australia to Pakistan in the reasonably foreseeable future.

I have considered the first named applicant’s claims to fear harm from the Taliban and other extremist groups because she studied [Discipline 1] in Australia (and worked [in] Australia). I find that there is no real chance or real risk of the first named applicant or any of the other applicants being harmed in the reasonably foreseeable future on this basis for the reasons given above.
Harm to the children
The first named applicant claims the two children will be targeted and attacked by the Taliban and other extremist groups if they return to Pakistan because they were both born in Australia. I note their evidence at the hearing before me that [the third named applicant] is now an Australian citizen.
At the hearing the first named applicant said what she was most worried about was her family and her children at school. She explained that the terrorist attack on the school in Peshawar in December 2014 made her scared as her son was going to school and all the schools were in danger. She said that if they returned to Pakistan her sons could not go to school as they were too scared.
She later also said that her son as Australian citizens would be targeted for kidnapping.
As I noted to the applicants, I accept that the children were born in Australia and that [the third named applicant] is now an Australian citizen. However, as I also noted to the applicants, I find that Pakistan has a dual citizenship arrangement with Australia and that [the third named applicant] could hold Australian citizenship and be granted Pakistan citizenship based on his parents’ Pakistan citizenship.[7] I find that [the fourth named applicant] could be granted Pakistan citizenship on the basis of his parents’ Pakistan citizenship.[8] There is no evidence before me to suggest that the children would not be granted Pakistan citizenship. I find, given the ages of the children, that they would return to Pakistan with their parents. I find that if the family returned to Pakistan, the parents would seek and be granted Pakistan citizenship for the two children who would then, as Pakistan citizens, have all the same rights as any other Pakistan citizen child.
[7] Government of Pakistan, Directorate General of Immigration & Passports, Ministry of Interior, Immigration, The Pakistan Citizenship Act, 1951 (II OF 1951), Article 5.
[8] The Pakistan Citizenship Act, 1951 (II OF 1951), Article 5.
I discussed with the applicants the country information set out below which indicates that there has been a significant decline in terror attacks, but also generalised violence and criminal activities, including kidnapping, in Karachi. The applicants responded that the Chinese embassy had been bombed in Karachi.
I have considered the applicant’s claims. I am very sympathetic to the apprehension that the applicants, in particular the children, would feel on returning to Pakistan and going to school there, and the fear of the parents that their children may be harmed in a terror attack or kidnapped, or another form of serious or significant harm.
However, the consideration is whether there is a real chance or a real risk of these feared events or any other harm occurring if the applicants return to Pakistan now or in the reasonably foreseeable future.
The December 2014 attack on the Peshawar Army School led to more than 140 children being killed. The TTP claimed responsibility and claimed that the attack was revenge for operation Zarb-e-Azb.[9] The DFAT report notes that the attack resulted in the National Action Plan being put in place which involved a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan; “… ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2.”[10] The NAP also established enhanced monitoring of extremists, and tight restrictions on madrassas.[11]
[9] "Police: Taliban attack over, all gunmen killed". Al Arabiya. 17 December 2014, "Taliban gunmen hold Pakistan school hostage, kill students". Deutsche Welle. 17 December 2014, DFAT Country Information Report Pakistan, 20 February 2019, 2.76.
[11] DFAT Country Information Report Pakistan, 20 February 2019, 2.36
The DFAT report indicates that attacks against girls’ schools by extremists continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan, and a significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.[12] But the report makes clear that these attacks are due to ideological opposition to female education.
[12] DFAT Country Information Report Pakistan, 20 February 2019, 3.214
The DFAT report notes that:
Kidnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas. Gender based violence is also common, but often goes unreported.
The Rangers and police (have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. While verifiable data remains unavailable, DFAT understands serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.[13]
[13] DFAT Country Information Report Pakistan, 20 February 2019, 2.98 – 2.99.
This assessment is supported by the South Asian Terrorism Portal (SATP) which notes in its assessment of Sindh for 2019 that:
Incidents of kidnapping also decreased from 174 in 2013 to 115 in 2014, 37 in 2015, 26 in 2016, 18 in 2017 and 13 in 2018.
Much of this success has been due to the ongoing operation of the Pakistan Rangers (Sindh). The report claimed that at least 15,838 operations were carried out during this period. A total of 11,619 terrorists and other ‘criminals’ were handed over to the police and 2,210 terrorists, 1,881 target killers, 852 extortionists and 227 kidnappers were arrested. A total of 169 kidnapped people were also successfully rescued.[14]
[14] South Asian Terrorism Portal, Sindh Assessment 2019, >
I have carefully considered the fact that the applicants have lived in Australia for a considerable period. I have considered the fact that [the third named applicant] and [the fourth named applicant] were born in Australia and that [the third named applicant] is an Australian citizen.
On the basis of the country information set out above, and below, I consider that the general security situation in Pakistan has improved greatly since the launches of Operation Zarb-e-Azb and Radd-ul-Fasaad, and the launch of the NAP in direct response to the Peshawar Army school atrocity. It appears that the Peshawar school was attacked in retaliation for the military Operations and because the Peshawar army school educated the children of soldiers. Whilst girls’ schools continue to be attacked, these attacks appear more common in regions other than Sindh, the home region of the applicants. The NAP, in direct response to the attack on the Peshawar army school, in concert with the Zarb-e-Azb and Radd-ul-Fasaad Operations, appears to have very significantly impacted on the incidence of terror attacks. Further, these security operations have also had a very significant impact on generalised crime, including, specifically, kidnapping.
I have carefully considered whether their long-term residence in Australia, the fact the children were born in Australia, and [the third named applicant]’s Australian citizenship means that they will be at a heightened risk of terrorist attacks, kidnapping or other crime. I find that the country information does not support a conclusion that people who have lived in Australia for a considerable period, or children born overseas, or who are overseas citizens, are at any greater risk of terror attacks, kidnapping, or any other harm. As noted above, many Pakistanis reside overseas and then return to Pakistan. The country information does not support that people within this group are targeted for harm. Nor does the country information support a conclusion that people born in Australia or another overseas country, or those who are citizens of another country, are targeted.
Having regard to the country information, and the characteristics of the applicants, I find that the country information supports a conclusion that the chance of a terror attack on the children or any of the applicants would be remote, or on any school the children applicants would attend in Sindh province; a boys or co-education school as opposed to a girls school, and given the improved security situation, would be remote. In making this finding I have had regard to their time in Australia, the children being born here, and the Australian citizenship of [the third named applicant]. I find, taking into account the characteristics of the applicants and the country information, that there is no real chance that applicants three or four, or their parents, would be harmed in a terror attack at any school they attended or anywhere else in their home area. Further, I find that there is no real risk that applicants three or four, or their parents, would be harmed in a terror attack at any school they attended or anywhere else in their home area.
I find that the country information supports a conclusion that the chance of a kidnapping has so significantly reduced given the military operations and the NAP, that the chance of the applicants’ being kidnapped is remote. The security situation, both generally and in relation to kidnapping specifically, as set out in the SATP information has so dramatically reduced that I find the chance of the applicants being kidnapped, taking into account their time in Australia, that the children were born here, and the Australian citizenship of [the third named applicant], to be remote.
On the information before me, I find that there is no real chance of the applicants being seriously harmed in a terrorist or school terrorist attack by the Taliban or anyone else, for reasons of their imputed political opinion or membership of any particular social group on the basis of having resided long term in Australia, the applicant children being born in Australia or the Australian citizenship of [the third named applicant] or for any other reason if they are returned to Pakistan, now or in the reasonably foreseeable future. Further, I find on the same basis that there is no real risk that they will suffer significant harm on this basis if they are returned from Australia to Pakistan in the reasonably foreseeable future.
On the information before me, I find that there is no real chance of the applicants being kidnapped by the Taliban or criminals or anyone else for reasons of their imputed political opinion or membership of any particular social group on the basis of having resided long term in Australia, the applicant children being born in Australia or the Australian citizenship of [the third named applicant] or for any other reason if they are returned to Pakistan, now or in the reasonably foreseeable future. Further, I find on the same basis that there is no real risk that they will suffer significant harm on this basis if they are returned from Australia to Pakistan in the reasonably foreseeable future.
Harm to [the first named applicant] on the basis of her name
The first named applicant claims Pakistani citizens with the same family name as her, [Family Name 1], are targeted and killed by the Taliban and extremist groups in Pakistan. It is the case that [the first named applicant] acknowledges she is a Sunni Muslim.
At the hearing before me I asked the applicant about this claim. She said that people with the name [Family Name 1] are usually targeted – the terrorists check people’s ID and if they see the name ‘[Family Name 1]’ they will kill them. I noted that reports of terrorists checking IDs and killing people was because they were Shia, rather than because they had a particular name. She responded that all the same they would kill her as she has the name [Family Name 1].
I discussed with the applicant the country information, as set out above and below, which may indicate that there was not a real chance or a real risk that she would be stopped and harmed on the basis of her name. She responded that she was afraid.
I have had regard to the country information as set out above and below, and in particular I refer to the significant decline in sectarian attacks throughout Pakistan[15] and in Sindh in particular, with only one sectarian attack occurring in 2018.[16]
[15] DFAT Country Information Report Pakistan, 20 February 2019, 2.91.
[16] South Asian Terrorism Portal, Sindh Assessment 2019, >
Even if [the first named applicant] is believed or suspected to be a Shia, I find that with the improved security situation in Karachi and Sindh, there is only a remote chance of her being stopped on a bus or anywhere else by Sunni militants who may believe her to be Shia because of her name. The security situation has improved to the point that there is not I find, a real chance or a real risk of [the first named applicant] being stopped and harmed by militants on the basis of her imputed religion because her name is [Family Name 1]. I find that there is no real chance of her being harmed by the Taliban or any other extremist or militant groups for reasons of her imputed Shia religion because her name is [Family Name 1] if she returned to Pakistan now or in the reasonably foreseeable future. I find that there is no real risk of [the first named applicant] being stopped and significantly harmed by militants because her name is [Family Name 1] and they may believe she is Shia.
Harm due to the general security situation in Pakistan
The applicants claim there is no law and order in Pakistan and the Taliban have openly warned they will kill anyone found to be associated with western nations. At the hearing the applicants said that Pakistan was a very dangerous place, they pointed to the Australian Government website Smartraveller which recommends no non-essential travel to Pakistan. [The first named applicant] said that everywhere in Pakistan was dangerous, public places, a lot of mosques were not safe, travelling on the bus was not safe, restaurants and hotels were not safe.
I explained that I needed to assess what would happen if they returned to Karachi, their home area. [The first named applicant] said that there had been an attack on the Chinese embassy in Karachi.
I discussed with the applicants the data from the South Asian Terrorism Portal (SATP), which had recorded a very significant decrease in violence in Sindh in 2018:
According to partial data compiled by the South Asia Terrorism Portal (SATP), Sindh registered a record low of 46 fatalities, including 25 militants, 12 civilians, and seven Security Force (SF) personnel through 2018. There were 243 such fatalities, including 114 civilians, 23 SF personnel, and 106 terrorists, in 2017. Overall-terrorism related fatalities in 2018 thus registered an 81.06 per cent decline in comparison to 2017.
Other parameters of violence also witnessed considerable diminution. While Sindh accounted for 20 major incidents (each involving three or more fatalities) of violence, resulting in a total of 199 deaths in 2017, 2018 witnessed eight such incidents, accounting for 33 fatalities. One of the major attacks of the year was the November 23, 2018, Baloch Liberation Army (BLA) suicide attack on the Chinese Consulate at Block 4 in the Clifton area of Karachi. At least six people, including three civilians, two Policemen, and a private security guard, were killed. Three terrorists involved in the attack were also killed by SFs. No Chinese national was hurt. Claiming responsibility for the attack, BLA disclosed that the attackers had been tasked to target the consulate.[17]
[17] South Asian Terrorism Portal, Sindh Assessment 2019,
I noted that this information was consistent with the DFAT report, which stated that for the whole of Pakistan there was ‘an overall 29 percent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend, but that despite this Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.’[18]
[18] DFAT Country Information Report Pakistan, 20 February 2019, 2.67.
Referring specifically to the situation in Karachi, the DFAT report notes that Karachi saw a 62 percent decrease in terrorist attacks, and that serious crime across Pakistan, especially in Karachi, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP. [19] This reporting is consistent with the reporting of the European Asylum Support Office, which also describes a very significant decline in terror attacks [20]77
[19] DFAT Country Information Report Pakistan, 20 February 2019, 2.69,
[20] EASO, Pakistan Security situation, Country of Origin Information Report, October 2019, p. 77,
The applicants responded to this information and said that despite the arrests, the judges then released the people who have been captured for terrorism. [The second named applicant] said that the terrorists are participating in the politics of the mainstream and the government supports the Taliban. They pointed to an article that showed that US planes did not fly over Pakistan airspace.
I have had regard to the news reports supplied by the applicants, but I note that the majority of these are news articles, and I prefer the reports I have set out above as being more detailed, comprehensive, and reliable. They have included excerpts from earlier SATP reports, but I have included here, and discussed with them, the most recent available.
There are several aspects to this claim. In relation to the claim that the Taliban have warned they will kill anyone found to be associated with Western nations, I do not accept there is any real chance or real risk of harm to the applicants on this basis for two reasons. Firstly, the security situation has improved, and the chance or risk of harm from militants has diminished to the point that there is no real chance or real risk of the applicants being targeted or harmed in this way. Secondly, as set out above, many Pakistanis spend some time overseas, including many in Western nations, studying or working, and then return to Pakistan. The country information does not support a conclusion that these people have been or would be targeted for harm by the Taliban or other extremists on this basis. I find that there is no real chance of the applicants being harmed by the Taliban or anyone else for reasons of their imputed political opinion or membership of a particular social group as persons associated with western nations if they return to Pakistan, now or in the reasonably foreseeable future. On this basis I also find that there is no real risk the applicants will suffer significant harm from the Taliban or anyone else if they are removed from Australia to Pakistan.
The applicants make a broader claim, and this is that Pakistan is not safe, and they are afraid to return there. Having lived in Australia for many years now, I do understand and sympathise with their apprehension.

As I understand this aspect of their claims, they do not claim that they will be harmed for any discernible s.5J reason or reasons, rather they fear general violence and the general security situation. I find on the information before me that there is no s.5J nexus and that therefore the applicants cannot satisfy the requirements for the grant of protection as a refugee on the basis of this claim.
I have considered this claim on the basis of complementary protection. It appears that this claim may have a difficulty in that these concerns are shared, and suffered, by the Pakistan population generally. But there is a more fundamental problem with this claim. The country information indicates to me that the security situation in Pakistan, and in particular in Karachi has improved very significantly, to the point that there are very few terrorist attacks or acts of general violence or crime. The security operations of the authorities, and the NAP, appear to have had a very considerable impact on terrorist and generalised violence and crime in Karachi, Sindh and Pakistan more broadly. It is true that many of the reports note that the relative improvement may decline if the rangers leave Karachi, but the most recent information does not indicate that they will be removed from the city in the reasonably foreseeable future. The presence of the rangers, and the NAP, have led to real and, I consider given the information in the reports cited, durable reductions in terrorist, sectarian and generalised violence in Karachi and Sindh. On the basis of the information before me, I find that there is no real risk of the applicants being significantly harmed by the Taliban, other extremists or anyone else in the general security situation of Karachi and Sindh as it currently is, now and into the reasonably foreseeable future.
Harm on cumulative basis
I have carefully considered the claims of the applicants. I accept that they have lived for a long period in Australia, that the children were born here and [the third named applicant] is an Australian citizen. However, I have found that both children can obtain Pakistan citizenship and that their parents would obtain this for them if the family returns to Pakistan. I have accepted that [the first named applicant] studied [Discipline 1] in Australia but worked only in a [role] here and did not complete her [Discipline 1] qualifications and would not work as a [Occupation 1] on return to Pakistan. I have found that [the first named applicant] would not face a real chance or real risk of being harmed on the basis of her name and being imputed to be Shia by Sunni extremists, because of the improved security situation. I have found that the applicants will not be harmed on the basis of the general security situation in Karachi and Sindh, which has much improved.
Having regard to what I have accepted, their claims and evidence, and considering their claims in total, I find that there is no real chance the applicants will be harmed for any s.5J reason if they return to Pakistan, now or in the reasonably foreseeable future.
I have considered their claims in total under the complementary protection provisions. I find there is no real risk the applicants will suffer significant harm if they are removed from Australia to Pakistan, now or in the reasonably foreseeable future.
Conclusions
For the reasons given above the Tribunal is not satisfied that any 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) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Sean Baker

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.
…

[2020] AATA 2015

8 April 2020

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction