1827157 (Refugee)
[2021] AATA 4675
•14 July 2021
1827157 (Refugee) [2021] AATA 4675 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1827157
COUNTRY OF REFERENCE: Pakistan
MEMBER:Brendan Darcy
DATE:14 July 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – particular social group – wealthy family targeted by the TTP – adduction – Hazaral ethnicity – Awan – Sunni Muslim – mental health condition – disability – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulation 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection [in] July 2016 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 the Islamic Republic of Pakistan (Pakistan) applied for the visas on [in] January 2015.
The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or (aa) of the Act as targets of the Pakistani Taliban based on the first applicant’s race/ethnicity and/or her father’s status as a retired businessman and that the applicants are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the primary applicant.
For the purposes of this decision, [the first named applicant] will be referred to as the first applicant or the applicant; [the second named applicant], will be referred to as the second applicant or the applicant’s spouse; [the third named applicant], will be referred to as the third applicant or the applicant’s child.
[In]January 2018, the Tribunal affirmed the decision not to grant the applicants protection visas.
That decision was set aside on [in] September 2018 by the Federal Circuit Court on the basis that the Tribunal erred in failing to consider a claim made by the third applicant to fear harm as a result of accessing medical treatment, in the form of kidnapping and/or bombing of hospitals and medical facilities. The matter is now before the Tribunal pursuant to an order of the Court.
[In] January 2020, the first and second applicants appeared at a scheduled hearing via an audio-visual facility between the Tribunal’s Melbourne and Perth premises to provide evidence and present arguments on behalf of all the applicants. Present at the scheduled hearing was an interpreter in the English and Urdu languages.
The applicants were assisted by their representative.
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 (Annexure 2).
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant was born on [DOB deleted]in Karachi in the Pakistani province of Sindh.
The second applicant was born [DOB deleted]in Abbottabad in the Pakistani province of Khyber Pakhtunkhwa.
The first and second applicant claim to have married [in] 2011 and that they are the biological parents of the third applicant born on [DOB deleted]in Australia. A copy of the third applicant’s birth certificate is on the Departmental file.[1]
[1] [Department file number deleted].
It is claimed that all three applicants are citizens of Pakistan and do not hold nationality or citizenship of any other country. Copies of their passports are on the Department and Tribunal (1611350) files.
Visa histories
[In] June 2012 the first applicant was granted a Class TU Subclass 572 student (dependent) visa whilst still resident in Pakistan on the basis of the second applicant’s visa of the same subclass granted [in] April 2011. The first applicant arrived in Australia from Pakistan [in] March 2013. [In] March 2014, she became subject to a bridging visa A which ceased [in] March 2015. [In] January 2015 the first applicant lodged the protection visa application and a bridging visa C was granted. She has remained in Australia lawfully as the holder of a series of bridging visas C since that date.
The second applicant was granted a Class TU Subclass 572 student visa while resident in Pakistan [in] November 2019 and initially arrived in Australia [in] December 2009. [In] March 2013 his initial visa expired and he was granted a Bridging Visa A, an additional Class TU Subclass 572 student visa was granted [in] April 2011. Between 2011 and 2013, he returned to Pakistan on three occasions: departed Australian [in] April 2011 and returned [in] July 20211; departed 20 November 2011 and returned [in] December 2011; and departed [in] February 2013 and returned on [in] March 2013 with the first applicant.
[In] March 2014, the first and second applicant were granted a bridging visa (A) which they were subject to when the third applicant was born in Perth in Western Australia in April 2014. The third applicant has never left Australia.
[In] January 2015, the applicants applied for Class XA Subclass 866 protection visas and were granted associated Bridging Visas C. The claim for protection originates with the first applicant. The second applicant has not made separate claims for protection. Claims for protection made on behalf of the third applicant have been made after the initial application.
Applicant’s claims at the time of lodgement with Department
The first applicant’s detailed written claims for protection are on the Department’s file [number deleted]. The applicant’s written claims are summarised below:
· After the first applicant’s marriage to the second applicant in 2011 in Abbottabad, she continued to reside at her parents’ home as the second applicant returned to Australia;
· Prior to coming to Australia [in] March 2013, the first applicant lived with her in-laws in Abbottabad from [in] March 2013 for 11 days;
· Prior to that, the first applicant had spent all her time in Karachi (in the Pakistani province of Sindh);
· The first applicant did not stay with her in-laws after her marriage because the wife of the first applicant’s brother-in-law (the second applicant’s brother) did not like her and did not approve of the marriage;
· The first applicant claimed to be ethnically ‘Awan’ and religiously a Sunni Muslim;
· The first applicant’s father was a big businessman in Karachi, Pakistan where he has a [in] business [for particular goods]. Her father does work on behalf of the municipal government of Karachi as a [supplier];
· [In] February 2014, the first applicant’s father was kidnapped by some people not far from their house or compound. A driver for her father informed the family about the abduction. The first applicant’s brother went to the police station and reported the incident;
· After more than one week, the kidnappers called and demanded money and stated that they belonged to the Taliban;
· The Taliban operates all over Pakistan;
· According to the first applicant, if the family did not give them money, the Taliban were going to kill the whole family, starting with her father.
· The Taliban asked for [an amount] Pakistan rupees. The business of the first applicant’s father was not doing well at that time and the family and the business didn’t have enough money;
· The first applicant’s brother went to the police station. The kidnappers sent her family a video of her father and the father was saying to do something otherwise they would kill the first applicant’s family;
· The government owed the first applicant’s father money;
· When the first applicant’s brother began to request the money, the government said that they didn’t have the money at this stage. The first applicant’s brother then borrowed the money from relatives;
· The kidnappers sent the family a video in which they were cutting a [person’s body part]and gave the family a warning that they would kill the first applicant’s father and her family;
· After a month or two, the first applicant’s brother sold a vehicle and borrowed money from the first applicant’s father-in-law and other relatives;
· When the Taliban kidnappers received the money, they released her father;
· The first applicant’s father explained to the family that he was in the mountains with four other people and that the Taliban cut one person’s [body part]in front of him;
· The first applicant’s mother and father went back to the village, while her brother and sister were in Karachi;
· The first applicant’s brother received a phone call from the same people demanding that if he didn’t pay more money, they would kill the family;
· The police did not do anything. People in a car were hanging around the house.
· The first applicant’s father sold his office, borrowed more money and moved to an [certain] area. His work still takes him outside the [area] and he worries people are observing him again;
· The first applicant’s father was the only person who reported the kidnapping and made a First Incident Report (FIR);
· The first applicant delivered her child, the third applicant, in Australia without any family support. Had it been safe, she would have returned to Pakistan. However, the first applicant’s family told her not to come as the family was under threat;
· The first applicant fears that if she returns to Pakistan, the Taliban will hurt her and her family and demand more money as ransom.
The applicants attended an interview in relation to this application for protection [In]June 2016. The applicant’s migration agent provided pre-hearing submissions [in]February 2015 and post-hearing submissions [in] June 2016.
In the delegate’s decision record, the Tribunal notes that the delegate witnessed audio-visual evidence in which a man purporting to be the applicant’s father was being held to ransom. The delegate placed no weight on it on the basis that he could not verify its authenticity.
The delegate was satisfied that the father of the first applicant was a wealthy businessperson and had been kidnapped by the Taliban, as claimed. However, the father has since returned and resides in[City 1]], a secure area within Karachi, and her brother who has taken over the family business has not been subjected to any further incident.
[In] July 2016, the delegate on behalf of the Minister refused to grant the applicants protection visas.
Evidence provided to the Tribunal
[In] July 2016, the applicants validly lodged an application to the Tribunal to review the delegate’s decision. Attached to the review application was a copy of the delegate’s refusal decision.
[In] April 2017, a hearing was conducted by the Tribunal to provide the applicants with the opportunity to give evidence and present arguments. An interpreter in the Urdu language was arranged to assist the primary applicant; an interpreter was not needed for the secondary applicant as his command of English was good.
Prior to the hearing, on or about [in] March 2017, the Tribunal received written submissions from the applicant’s then [representative]. The Tribunal has considered the submissions and the considerable amount of supporting materials attached which included correspondence concerning the physical and mental health of the applicants, supporting statements, photographs, letters, affidavits, email statements, a proposed travel itinerary and country information.
The submissions addressed the circumstances of the first applicant’s family living in [City 1], a secure walled enclave within metropolitan Karachi. It was submitted that the family could be evicted at any time should the governing authority choose to do so. It was further submitted that by reason of the fact authorities had chosen for them to stay despite the family having no military links, this showed that authorities in Pakistan have accepted that the family is under constant threat and have taken measures to provide the family with security. The permanence of this security is uncertain for the reasons stated above. It was also submitted that [City 1] had become prone to attack and was not completely shielded from what occurs in Karachi and was not as safe a location as the decision-maker suggested.
The Tribunal notes from the submissions that as at [in] March 2017 the debt owed to the primary applicant’s father remained unsatisfied by [certain government bodies] . It was submitted that should the father commence court proceedings against these entities it would be certain that the family would be evicted from their premises within [City 1]. It was submitted that the family is left in a limbo situation and unable to plan ahead.
[In] January 2018, the Tribunal affirmed the decision not to grant the applicants protection visas.
As mentioned above, the matter was judicially reviewed by the Federal Circuit Court and was subsequently set aside. The matter is now before the Tribunal pursuant to an order of the Court dated [in] September 2018.
While the matter was yet to be constituted to a member, the applicants forwarded a number of updates about the diagnosis of the third applicant’s disability.
[In] November 2019, the Tribunal received a pre-hearing submission that included:
· A 12-page legal submission prepared by the applicant’s representative;
· Documents in relation to the third applicant’s health condition from [Organisation 1] dated [in] September 2018 and [in] July 2019 and from [Organisation 2] dated [in] October 2018;
· A ‘To Whom It May Concern’ letter dated [in] November 2018 from [a] consultant paediatrician, indicating the third applicant’s diagnosis of autism spectrum disorder (ASD);
· Medical letters dated [in] July 2018 and [in] June 2019 from [a doctor] about the third applicant’s disability;
· Letter from a consultant psychiatrist letter dated [in] September 2018 from [doctors name deleted] from [Organisation 3] who was treating the first applicant indicating that she and her daughter require a high level of support; that the first applicant has been stabilised on psychotropic medications and continues to require ongoing counselling, significant input into parenting skills and needs a level of specialised psychiatric care;
· Various online media reports on attacks on hospitals, including from the World Health Organization, indicating that 43 attacks and 102 deaths were recorded in Pakistan on health care facilities over 2014 and 2015; a terror attack killing eight people at a Sufi shrine in Lahore was reported in DW online on 20 November 2019; a terror attack in Quetta was reported in American ABC News online dated 24 July 2019; two reports from 21 July 2019, one from Aljazeera reporting and the other from the New York Times, reporting on the Tehrik-i-Taliban Pakistan (TTP) claiming responsibility for an attack in north western Pakistan.
Further medical reports were received [in] December 2019.
An amended legal submission with attachments was received by the Tribunal on received [in] Dec 2019
[In] January 2020, the first and second applicants appeared at a scheduled hearing via an audio-visual facility between the Tribunal’s Melbourne and Perth premises to provide evidence and present arguments on behalf of all the applicants.
Another post hearing submission was received [in] March 2020, including statutory declarations from the second applicant and the father of the first applicant.
Further submitted country information was submitted [in] April 2020.
The Tribunal received a further submission [in] June 2020. The applicant provided a psychologist’s assessment dated [in] June 2020 of the first applicant. It states the first applicant presents with symptoms of severe anxiety and depression, inducing sleeplessness, headaches, social isolation, irritability, hopelessness and helplessness which sometime lead to suicidal ideation. It states that recollections of her time during her father’s abduction in Pakistan re-trigger trauma symptoms. Also attached was a copy of a 20 May 2020 media article from Gandhra stating from a report from the US Department of Defence to Congress that the Pakistani support for the Taliban in Afghanistan was ongoing.
There were also a medical report submitted [in] June 2020; and country information submitted [in] July and [in] July 2020.
Video evidence
The previous Tribunal was provided with a USB upon which two brief videos were attached. According to the earlier decision record, the audio-visual evidence purports to show the father of the first applicant communicating with his family during the period of time he was kidnapped. One of the videos shows two unidentified persons armed with firearms menacing the first applicant’s father. The present Tribunal has also been provided with the videos and has watched them.
Section 424A letter
Having considered the complexities of this matter, the Tribunal undertook to generate up-to-date country information from the Department of Home Affairs regarding the provision of mental health services, autism services and relocation to Abbotabad. In June 2020, the Tribunal received a Q&A Report prepared by the Department of Home Affairs in June 2020: Pakistan: 20200701125545 – Mental Health – Autism – Karachi – Women’s Access to Mental Health Care – Abbottabad.
[In] August 2020, the Tribunal dispatched a letter to the applicants under s.424A inviting them to respond to key aspects arising from this source of information, namely about the provision of mental health services, the provision of services for persons with autism, the degree of stigma to be faced by persons and the appreciable risks and reasonableness in the applicants relocating to Abbottabad. A copy the Q&A report in its entirety was attached to the letter to assist the applicants.
[In] August 2020, the applicants requested an extension of time to respond which was granted. [In] September 2020, the Tribunal received the applicants’ response via their representative. This included:
·A 25-page legal submission from the applicant’s representative;
·A ‘To Whom it May Concern’ letter dated [in] November from [consultant paediatrician] indicating the applicant’s diagnosis of with severe ASD and global developmental delay; and
·Another ‘To Whom It May Concern’ letter dated [in] June 2020 from [consultant paediatrician]indicating the applicant’s diagnosis of severe ASD and global developmental delay.
[In] September 2020, the Tribunal received a further submission via the applicant’s representative. This included an addendum to the legal submission and a letter of support from the occupational therapist from the [Organisation 1] stating the third applicant had been diagnosed with ‘Level 3 Autism’ as categorised by the American Psychiatric Association.
Other post hearing submissions
[In] December 2020, the applicant also forwarded a ‘To Whom It May Concern’ letter from [Organisation 1] dated [in] December 2020.
[In] December 2020, the Tribunal received a letter dated [in] November 2020 addressed to [doctor] from[doctor], a consultant paediatrician outlining the third applicant’s health and disability problems, prior history and medications.
[In] February 2021, the Tribunal received two emailed documents via the applicants’ representative. One of the documents was from the Office of District Education in Abbottabad including the ‘threat alert’ about the risk of terrorist attacks on Abbottabad’s schools, colleges and Islamic education institutions from Afghan terrorists in February 2021; the other was a screenshot of a news alert about the threat alert.
[In] April 2021, the Tribunal received another submission regarding autism in Pakistan via the applicant’s representative. Attached was an undated document entitled Pakistan Country report on autism. It appeared to be prepared by the Secretary to the government of NWFP, Social Welfare and Women Development Department for a Zakat council. It mentions that the biggest challenge is the stigma attached to the word autism. Apart from this stigma, lack of treatment facilities, training facilities and poor attention from the government are some of the major problems that a family with autism has to face.
[In] April 2021, the Tribunal also received a letter dated [in] March 2021 from [a health service] in Western Australia indicating the third applicant has a diagnosis of ASD requiring very significant support as well as global developmental delay with presumed ongoing intellectual impairment.
No further submissions or documents were received by the Tribunal, either from the applicants or anyone on their behalf, right up to the time making this decision.
Non-disclosure certificates
There are no non-disclosure certificates on either the Departmental or the Tribunal’s files.
Country information
In assessing this decision, the Tribunal has considered the available country information. In particular, it has considered an earlier DFAT Country Report (the September 2017 DFAT Report), together with the most recent DFAT Country Information Report for Pakistan dated 20 February 2019 (the DFAT Report). So far as the applicant’s claims are concerned, there is no material difference between the DFAT Report and the September 2017 DFAT Report. The Tribunal has specifically considered those parts of the DFAT Report as detailed in Annexure A attached to these reasons.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The first and second applicants claim to be born in and nationals of Pakistan. The third applicant, according to a birth certificate issued by the relevant authority in Australia in[year], is the biological child of the first and second applicants. As the third applicant’s parents did not hold Australian permanent residency or citizenship at the time of her birth it is claimed the third applicant is a Pakistani citizen and not an Australian citizen.
The Tribunal finds the applicants have provided consistent information regarding their identities and places of birth. Based on the available evidence, all of which is on file and with no evidence to the contrary, the Tribunal finds that all three applicants are citizens of Pakistan, that Pakistan is their country of nationality for the purposes of the refugee criteria outlined in the Act and also their receiving country for the purposes of s.36(2)(aa) of the Act.
Third country protection
There is no suggestion the claimants have a right to enter and reside, either temporarily or permanently, in a third country for the purposes of s.36(3), (4), (5) and (5A).
Membership of the same family unit
The first and second applicant claim to be lawful non-citizens in Australia that were born and raised in Pakistan and married in [year] in Pakistan.
With no evidence to the contrary, the Tribunal accepts the first applicant is the married spouse of the second applicant. For the purposes of this decision, the Tribunal accepts that the second applicant is a member of the same family unit as the first applicant for the purposes of subregulation 1.12(4)(a) of the Regulations.
According to the birth certificate submitted to the Department, the third applicant was born [DOB deleted] in Australia and remains a minor at the time of this decision. It further indicates the first and second applicants are the parents of the third applicant. With no information to the contrary, the Tribunal accepts the third applicant is the biological minor child of the first and second applicants. It follows that the Tribunal is also satisfied that the third applicant is a dependent child of the first and second applicants and that the third applicant of this review application satisfies subregulation 1.12(4)(b).
If protection visas were granted to either parent of the third applicant on the basis they are owed Australia’s protection and the third applicant is found to be a member of the same family unit by satisfying r.1.12 of the Regulations, or vice versa, the Tribunal is obliged to consider that this application under review be remitted for reconsideration on the basis that the applicant satisfies s.36(2)(b) or s.36(2)(c).
Credibility
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70].) In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at [451], per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal finds no significant credibility concerns about the applicant’s claimed personal circumstances in this matter.
Accepted personal circumstances
With no evidence to the contrary, the Tribunal accepts the following about the first applicant:
· The first applicant was born in [year] in Karachi and was raised in Karachi, as claimed;
· The first applicant’s father had been a businessman involved in [information deleted]in Karachi;
· The first applicant’s parents are retired and they currently reside in Karachi, specifically in[City 1];
· The first applicant has two brothers and a sister who lives with her parents, and a brother in [Country deleted] who is an asylum seeker;
· The first applicant’s ethnicity is Hazara from the Hazara region and that her caste is Awan;
· The first applicant’s highest educational attainment is matriculation; and that she speaks and reads Urdu and understands some English; and
· Prior to arriving in Australia, the first applicant resided with the second applicant’s family. The second applicant had returned to Pakistan and departed for Australia together.
With no evidence to the contrary, the Tribunal accepts the following about the second applicant:
· The second applicant was born in [year] in Abbottabad in the Hazara region of eastern Khyber Pakhtunkhwa in Pakistan;
· While the mother of the second applicant has passed away, the second applicant’s father resides in Abbottabad;
· The second applicant speaks, reads and writes in the Urdu, Hindko and English languages;
· The second applicant’s ethnicity is Hazara from the Hazara region and he belongs to the Tanoli caste;
· The second applicant has [diplomas] and that he worked in retail in [another country]s;
· The second applicant has a number of health conditions including high cholesterol, fatty liver and stomach problems.
It is also accepted that the first applicant married the second applicant in [year] in Pakistan and that neither of them were married prior to this marriage. It is also accepted that they have one child, the third applicant, who was born in Australia in [year]. It is accepted that the third applicant has never visited her country of citizenship.
As outlined in further detail below, it is accepted the third applicant has been diagnosed by health specialists as having a complex developmental/behavioural disability or disorder, namely Autism Spectrum Disorder (ASD).
It is also accepted that each of the applicants belong to the Sunni Islamic faith tradition.
The Tribunal noted that while the first and second applicant have some connections to Abbottabad, their home area is Karachi where the first applicant’s family largely resides.
Past incident regarding an abduction and ransom involving the first applicant’s father
The first applicant claims that her father owned a [business] in Karachi which [delivered goods] . She has provided documentary evidence of the existence of the business. Although it does not appear to have its own website, numerous online directories list a ‘[business name]’, as being located in the [area deleted] of Karachi, which is where the first applicant states that her family resided at the time. A search of sources did not reveal any news reports or other mentions of a ‘[name deleted]’ (including spelling variants) who appeared to be linked to the[business]. Because of the business acumen of the first applicant’s father, her father and eldest brother received extortive threats between 2011 and 2013.
Based on the available evidence, the Tribunal accepts these aspects of the first applicant’s claims to be reliable and genuine.
As outlined above, it is claimed that the first applicant’s father had been targeted by the Tehreek-e-Taliban of Pakistan (TTP) for abduction due to his wealth and ability to pay a ransom and that the abduction of her father was undertaken by TTP in February 2014 while the first and second applicants were living in Perth, the capital city of Western Australia. The first applicant’s statutory declaration provided details about how the abduction and ransom were reported to the family and the threat to kill the first applicant’s father if the ransom was not paid.
Two videos of the father pleading for assistance were sent to family. Copies were provided to the Tribunal. This presiding Tribunal member opened the digital files of these short videos which were disturbing in content. During the abduction, it was claimed the first applicant’s father was held captive by the TTP in a mountainous area of [location deleted], during which [a number of] others were detained against their will.
The first applicant’s statutory declaration further mentioned that as much as [amount]Pakistani rupees (about the equivalent of [amount] Australian dollars) was raised after selling some assets and raising loans. The ransom was arranged by the first applicant’s eldest brother and delivered to the kidnappers to successfully secure the release of the first applicant’s father. (The selling of assets and the raising of loans was partly prompted to a lack of cashflow into the business as there was a dispute between the contracting business and the Pakistani authorities regarding monies owed. The applicants generally provided vague details about the dispute).
After the first applicant’s father was released, the Tribunal notes that a FIR was lodged with the police report in November 2014, a copy of which was submitted. It also noted it was claimed the first applicant’s parents moved to [location deleted] after the abduction for several months. It was further claimed that the first applicant had been told of a suspicious car outside her family’s Karachi residence and that her brother received a threatening call. This incident, it was also claimed, led to the family selling the business in Karachi and the family moving to a safer residence in [City 1][in] 2014. Documentary evidence to support the specifics of these claims were submitted, including the FIR lodged with the authorities many months after the incident.
The first applicant has also claimed that she wanted to return to Karachi to visit her parents and would have liked to return in order to give birth to and enjoy some help with the care of her newborn daughter from her extended family. However, she was persuaded that it was too dangerous.
The Tribunal further accepts the oral evidence provided to the Department that the first applicant’s brother took over the running of the family business, although her father continued to operate the business in the months immediately after his release.
Taking all the evidence into account, on balance, the Tribunal accepts that the first applicant’s father was targeted and abducted for ransom by the TTP in early 2014, as claimed, for the reasons claimed, namely as a successful and wealthy businessperson with capacity to pay a ransom. It accepts the claims about the release of the first applicant’s father and the subsequent move of the family to a military cantonment, for the reasons claimed. The video evidence is considered to be authentic by this Tribunal. It accepts that the family undertook a restructuring of their business affairs because this incident took place. It accepts the documentary, videographic, written and oral evidence about this dramatic and troubling indecent in 2014 to be genuine. Although the Tribunal did find it curious that the first applicant provided much detail in her written submissions but did not want to elaborate in detail during the scheduled hearing, claiming difficulties in remembering. The Tribunal has attributed this, at least in part, to a deterioration in the first applicant’s mental health.
The Tribunal notes and accepts that the second applicant had claimed in the earlier review application that his father-in-law recognised the face of one of the TTP leaders, Abid Muchar. As mentioned in the earlier decision, Muchar was killed in December 2014. [Information deleted]
In making these findings about the incident that triggered the application for protection visas, the Tribunal finds that the applicants did not, at the time of application, hold a genuine personal fear of persecution arising from these dramatic events.
Past and ongoing threats
Furthermore, the Tribunal has considered ongoing threats to the applicants since this application was lodged in early 2015. The applicants have consistently argued that they have only received indirect threats on the entire family of the first applicant and have not received any direct threats themselves and that the second applicant who is not a biological member of the threatened family has not received any threats at all.
The most notable direct threats include the one received by the first applicant’s brother after the release of her father which mentioned the family’s residency in Karachi; and the first applicant’s father receiving ongoing threats over his phone after moving to[City 1].
The Tribunal notes that the first applicant’s family members have resided in[City 1], Karachi and have not been subject to any further abduction and other harmful attempts, although they live in fear of such harm and fear leaving[City 1], even for medical appointments as a result.
The Tribunal accepts these claims about direct and indirect threats having occurred, as credible.
The Tribunal also notes that the first applicant has a brother in a seeking asylum in a European which has not yet been granted. The Tribunal does not find this materially relevant to the applicants’ claims.
Assessing the security situation, abductions in Karachi
The Tribunal reiterates to the applicants that the relevant date at which to assess claims that they are owed Australia’s protection obligations is the time at which this decision is made, not the time when they applied for its protection obligations.
In this matter, the Tribunal has restricted its findings as to whether the applicants face a real chance of serious harm for a nexus reason or whether the applicants face a real risk of significant harm under the complementary protection provisions to their home area of metropolitan Karachi. In this regard, the Tribunal is mindful that the applicants were not necessarily going to share the same residence as the first applicant’s family currently residing in the securitised area of [City 1] within Karachi and they had a real chance of seeking and gaining residency within wider Karachi, a vast city of approximately 16 million people.
The applicants did not specifically claim that they will be harmed in relation to the general violence or lack of security situation throughout Pakistan or Karachi specifically. Their claims relate to them being specifically targeted for a number of related reasons which are assessed in detail below. In this matter, nonetheless, the general security situation in Karachi and their more specific claims for being targeted overlap and intersect. Accordingly, the Tribunal found it reasonable to assess the country information in relation to the general security situation in Pakistan, especially as it relates to abductions and kidnappings, before considering other related claims.
The country information reports that the security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan.[2] It reported that there was a 29 per cent 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. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.[3]
[2] DFAT Report, p.18
[3] ibid
Pakistani non-state violence is largely a result of a proliferation of violent Islamist groups (backed by a network of madrasas and foreign funding);[4] official corruption; a lack of rule-of-law in significant parts of the country; a porous border with Afghanistan;[5] and the consequences of the 2001 US-led invasion of Afghanistan.[6] The recent reported atrocities presented to the Tribunal by the applicant reflect these security challenges.
[4] ‘The NAP Tracker: The first year audit of the National Action Plan’, Center for Research and Security Studies, May 2016, p.57, CIS38A80121293; ‘Threat looming large: ‘93 madrassas have solid links with terrorist or banned outfits’, Express Tribune, 26 October 2016, CX6A26A6E11683
[5] ‘Pakistan’s Jihadist Heartland: Southern Punjab’, International Crisis Group, Asia Report No.279, 30 May 2016, CIS38A80122212
[6] ‘EASO Country of Origin Information Report: Pakistan Security Situation’, European Asylum Support Office, July 2016, p.14, CIS38A80121710
It is reported that the security situation varies across the country, however, militant attacks can occur anywhere. Although the Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196) this was reported as an overall 19 percent decrease in attacks.[7] (A more recent report release in October 2020, indicates 125 attacks in 2019, no change in the previous year, and reported 145deaths which were down 26 per cent on 2018).[8] The then Inspector General of the Khyber Pakhtunkhwa Police Dr Sanaullah Abbasi declared that ‘the armed forces including the Pakistan Army, the Frontier Corps and police will not tolerate any violence in the territorial limits of Pakistan.’,[9]
In addition the Chief Minister Khyber Pakhtunkhwa, Mr Mahood Khan states on the Khyber Pakhtunkhwa Police website[10] that public safety is one of the top priorities of the government and that a safe and secure environment is essential for economic growth, social prosperity and political development of a society. He declared that the police, as the primary law enforcement agency in the province, had responsibility for providing safety and security through control of crime and maintenance of public order. He claimed that the Government, Khyber Pakhtunkhwa had spent huge sums of money equipping the police and taking policy initiatives to provide a better, safe and secure environment in Khyber Pakhtunkhwa. He claimed that the government of Khyber Pakhtunkhwa was fully committed to ensuring a peaceful environment in which people could live and work without even the sunlight fear; and play a vital role in the progress of the province which has been on the front line during the war against terrorism.
The Pakistan armed forces have launched several security operations in Pakistan including operation Zarb-e-Azb in June 2014 and its successor Radd-ul-Fasaad in 2017 which targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province. These operations have been credited with a significant reduction in the number of violence and terrorism related attacks in Pakistan.[11]
More recent than the 2019 DFAT, the Pakistan Institute for Peace Studies reports that 229 terrorist attacks took place during 2019 – 13 per cent fewer than during the previous year, accompanied by a marked decrease of 40 per cent in the number of lives lost to terrorist attacks.[12] According to the Centre for Research and Security Studies, there was an overall 31 per cent decrease in fatalities related to terrorism and counter-terror activities recorded in 2019, with 1,444 casualties of terror attacks and counter-terror operations (679 fatalities and 765 persons injured).[13] Militants continue to undertake attacks, particularly targeting security personnel; however, ordinary citizens are often caught up in incidents and make up the greater number of fatalities.[14] In the first quarter of 2020, CRSS recorded 224 violence-related casualties (140 fatalities and 84 persons injured).[15] A number of attacks, carried out by the TTP (or Taliban in Pakistan) or Baloch separatists, occurred in Quetta and elsewhere in Balochistan.[16] With regard to the Balochistan attacks, it has not always been clear who the intended targets were,[17] or the culprits or motivation.[18] Balochistan and Khyber Pakhtunkhwa remain the most violent provinces.[19]
Kararchi, the applicants’ home area is notorious for criminal and political violence. Karachi has long been host to political violence where militants associated with the MQM, ANP and PPP have been responsible for assassinations, riots and deadly clashes. Further, Islamist militants from throughout Pakistan have long treated Karachi as a safe haven and source of funding obtained through kidnapping, extortion and robbery.
[7] ibid
[8] EASO_COI_REPORT_Pakistan_Security_Situation_Final (europa.eu); published October 2020, p.70, 2021063123536,
[9] Geo News, KP police chief says armed forces won't tolerate terrorism in Pakistan 323 August 2020; 2019 DFAT Report on Pakistan, p.20
[12] ‘Pakistan Security Report 2019’, Pakistan Institute for Peace Studies, 5 January 2020, p.17, 20200114102703
[13] ‘CRSS Annual Security Report 2019’, Mohammad Nafees, Centre for Research and Security Studies, 28 January 2020, pp.5–6, 20200130161732
[14] ‘CRSS Annual Security Report 2019’, Mohammad Nafees, Centre for Research and Security Studies, 28 January 2020, pp.8–9, 20200130161732
[15] ‘Quarterly Security Report 2020 – 1st Quarter, 2020’, Center for Research and Security Studies, 7 April 2020, p.1, 20200416144229
[16] ‘Captain among 10 soldiers martyred in two terrorist attacks’, Express Tribune, 27 July 2019, 20190729083857; ‘5 dead and 34 injured in bomb attack at police van in Quetta’, Tribal News Network, 31 July 2019, 20190731085744
[17] ‘At least two martyred, over 20 injured as bomb explodes in Quetta’, Express Tribune, 23 July 2019, 20190724095423; ‘1 killed, 10 injured in two Quetta IED blasts’, Dawn, 5 September 2019, 20190910151614
[18] ‘Police officer shot dead in Pishin’, Dawn, 7 August 2019, 20190808105545; ‘Bombing at Quetta seminary kills five’, Pakistan Today, 16 August 2019, 20190819115521; ‘Another prayer leader killed near Quetta’, Dawn, 18 August 2019, 20190819105208; ‘JUI-F leader among three dead in Chaman blast’, Pakistan Today, 28 September 2019, 20190930101132; ‘Policeman martyred, 3 injured in exchange of fire with militants in Balochistan’s Loralai’, Express Tribune, 30 September 2019, 20191001113857
[19] ‘Quarterly Security Report 2020 – 1st Quarter, 2020’, Center for Research and Security Studies, 7 April 2020, p.2, 20200416144229; ‘CRSS Annual Security Report 2019, Mohammad Nafees, Centre for Research and Security Studies, 28 January 2020, p.5, 20200130161732; ‘Pakistan Security Report 2018’, Pak Institute for Peace Studies, 6 January 2019, p.19, 20190121110758; ‘Quetta, Loralai worst-hit by terror attacks in 2019’, Express Tribune, 8 October 2019, 20191009091757
100. However, despite the reputation of this city which has an estimated population of 16 million, the security situation has improved significantly in recent years. A crackdown on criminal and political violence since 2013 has dramatically improved the situation. An outcome of the operation’s success is that terrorist groups have moved outside Karachi (known as ‘interior Sindh’). Authorities involved in the crackdown are accused of extra-judicial killings and extortion, however police and security officials are, themselves, also targeted. In early 2019, a series of tit-for-tat murders and attempted murders in Karachi targeted members of Sunni and Shia political groups. Counter-terrorism authorities suggested an explanation for the increase in sectarian crime was the recent return to Karachi of some members of terrorist groups, and others that had finished gaol sentences. In 2019, there were seven fatalities as a result of sectarian violence in Sindh; in the first quarter of 2020, none were reported.
101. 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. More relevant to this matter is the effectiveness of the authorities in Karachi. DFAT reports that the rangers and police have arrested large numbers of people allegedly involved in kidnapping, robbery and extortion in Karachi in recent years. In addition to the province-based police forces, several paramilitary forces operate in Pakistan (including The Pakistan Rangers, which operate predominantly in Punjab and Sindh provinces and are headed by an army general). 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.
102. It appears that the phenomenon of terrorist groups kidnapping to procure ransoms has significantly reduced. Terrorism financing through kidnapping declined since government operations in FATA reduced militant activity there as part of Operation Zarb-e-Azb between about 2014 and 2016. A 2017 report suggested that the end of that operation saw kidnappings re-emerge in large cities, including Karachi, which has long been associated with this type of crime. Data varies somewhat between sources, with the Pakistan Institute for Conflict and Security Studies recording two kidnappings in Pakistan 2019 and five in 2018, all in Khyber Pakhtunkhwa.[20]
[20] ‘Trafficking in Persons Report 2019’, US Department of State, 20 June 2019, p.336, 20190621103235; ‘Five Facts About Human Trafficking in Pakistan’, Borgen Project, 16 March 2019, 20190718092016
103. There is also more recent reporting indicating that the frequency of kidnappings by terrorist groups to procure ransoms has fluctuated. The FATA Research Centre (FRC) reports that militants associated with the TTP ‘stepped up extortion and kidnapping for ransom activities’ during 2020, with eight incidents of kidnapping for ransom in the tribal districts of Khyber Pakhtunkhwa, including the October 2020 kidnapping of two employees of a non-governmental organisation in South Waziristan district.[21] The FRC reported four kidnapping incidents in the Khyber Pakhtunkhwa tribal districts in 2019.[22]
[21] ‘Low conviction rate cited as reason for human smuggling’, Dawn, 20 November 2017, CXC90406617849; ‘Trafficking in Persons Report 2019’, US Department of State, 20 June 2019, pp.365-366, 20190621103235
[22] ‘An investigation found Pakistan Christian women being trafficked to China as brides. Then officials shut it down.’, Miriam Berger, The Washington Post, 6 December 2019, 20191206150403
104. Overall, it is the Tribunal’s assessment that generalised violence from abductions and kidnappings has declined in line with the authorities’ targeted measures against terror and/or criminal outfits throughout Pakistan but is more marked in Karachi.
105. In considering this country information, the Tribunal has been mindful that the security or the lack thereof in Pakistan’s hospitals and its health care services generally was the reason provided by the Federal Circuit Court for this matter, differently constituted, to remitted back to the Tribunal Publicly available information online indicates that Pakistani hospitals and other ‘soft targets’ have been targeted by terrorist attack in the past. In 2010, a Karachi hospital was bombed as well as a bus, killing 12 people and 11 people respectively. The same report mentions an attack on Jinnah Hospital’s casualty department killing 11 people attack appeared to be aimed at Shi’a Muslims in Pakistan.[23] In 2016, the Civil Hospital in Quetta was targeted killing over 50 people.[24] Information provided by the applicants from the WHO indicates as many as 100 deaths from attacks on Pakistani health services over the 2014 and 2015 period.
[23] ‘22 dead as Pakistan hospital, bus bombed, ABC News, dated 6 February 2010 Pakistan: More than 50 people killed in horrific bomb attack on hospital in Quetta, News release by ICRC, dated 8 August 2016, On 3 July 2020, the applicants brought to the Tribunal’s attention a number of media reports regarding recent terror incidents in Pakistan:
· On 13 June 2020, The Hindu reported an explosion at a bazaar in the city of Rawalpindi, killing one person and injuring twelve others. No one claimed responsibility;
· On 29 June 2020, Dawn.com reported the killings of four terrorists by Sindh Rangers who attempted to storm a stock exchange in Karachi. The attack was attributed to militants from the separatist Balochistan Liberation Army; and
· On 19 June 2020, the International News (thenews.com.pk) reported that a hand grenade attack killed one and injured six in Karachi at a cash distribution programme. The report also mentions an earlier explosion near a security forces vehicle in Karachi killing one ranger and a civilian. Neither attack is attributed to any militant or criminal organisation.
107. While these kinds of attacks are shocking, they do not appear to be frequent and the Tribunal was unable to find any more recent incidents of a similar nature. The Tribunal has been able to locate more recent figures from the annual reports prepared by the Safeguarding Health In Conflict, a human rights organisation, indicating a notable decline on such attacks.[25]In 2017, it reported 18 attacks on health care workers; in 2018, it reported 11 attacks or incidents on health care workers and seven health care workers were killed; in 2019, 23 incidents or attacks on health care occurred with twelve health care workers killed; In 2020, there were seven recorded incidents against health workers, in which three health care workers were killed. While these figures do not include patients and visitors along with health care figures, they do provide some evidence the authorities have been effective against such attacks and protecting the public.
[25] Annual reports prepared by and sourced by Safeguarding Health in Conflict, e.g. 2020: No respite violence against health care in conflict: The Tribunal accepts the applicants have genuine personally held fears based on the accepted abduction and ransom the first applicant’s father endured in 2014. That is not in question, as the Tribunal accepts the applicants hold genuine, deep and urgent fears, subjectively understood, that they will fall victim to the existing and foreseeable levels of violence in Karachi and throughout their country of nationality, if they were to return.
109. However, a ‘well-founded fear’ of persecution means more the state of mind of the applicants and whether chances of such serious harm arising from generalised violence is merely plausible or credible. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[26]
[26]MIEA v Guo (1997) 191 CLR 559 at [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
110. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
111. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under art 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[27] The ‘real chance’ requirement in s.5J(1)(b) is the same as the ‘real chance’ threshold for the assessment of well-founded fear that was identified in Chan.[28]
[27] Chan v MIEA (1989) 169 CLR 379 at [389, 406–7, 396–8, 428–9]. Note that Gaudron J did not adopt the ‘real chance’ test
[28] DLB17 v MIBP [2018] FCCA 1299 at [16] (an appeal on different grounds was dismissed: DLB17 v MHA [2018] FCAFC 230; application for special leave to appeal dismissed: DLB17 v MHA [2019] HCASL 110). See also the Explanatory Memorandum to the Bill introducing s.5J: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171 at [1180]
112. Objectively speaking, the Tribunal accepts that there is and will remain a level of general violence throughout Pakistan and in metropolitan Karachi as well as abductions and criminal violence from a range of outlawed and terrorist outfits in Karachi. The level of this generalised violence would not be accepted in Australia and the Tribunal accepts it is a source of consternation for the applicants.
113. However, the general trend of violence has sharply declined since the applicants departed for Australia. The capacity of the authorities to protect Pakistani citizens from such violence has been greatly enhanced as the decreased tempo of kidnapping and terrorist attacks reflects this. There is, of course, much room for improvement. With the existing improvements in the security situation, reported abductions and kidnappings are relatively infrequent offences throughout Karachi and throughout much of Pakistan, with the exception of Khyber Pakhtunkhwa province where the second applicant’s family generally resides.
114. It is the Tribunal’s assessment of the country information, that the applicants do not have, objectively considered, a real chance of serious harm arising from the general security situation in Karachi specifically and in Pakistan more generally, if they were to be removed from Australia to that country.
115. Notwithstanding their claims about themselves and family members being attacked in the past and the likelihood they would be specifically targeted by the same outfit or organisation, the Tribunal moreover does not accept the general violence that occurs within Karachi is specific to the applicants and cannot be described involving systematic and discriminatory conduct toward the applicants. That is, the mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of s.91R(1) or s.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[29] In VSAI v MIMIA Crennan J in considering s.91R(1)(c), stated that where conduct was shown to be serious harm is assessed as to whether it is ‘systematic conduct’ it would be wrong to require the applicant to show anything more than that it is deliberate or pre-meditated, that is, motivated. This is applicable to s.5J(4)(c).
[29] WAKZ v MIMIA [2005] FCA 1065 (French J, 2 August 2005) at [49]. His Honour’s discussion does not refer specifically to s.91R(1)(c), however, the distinction that is drawn between ‘persecutory action on the part of the government or any other agencies’ and the impact of ‘non-persecutory questioning’ on an applicant’s fragile mental state appears consistent with the consideration of the requirements of s.91R(1)(c)
116. Notwithstanding the applicants’ claims about perceptions of wealth or being associated with the first applicant’s father, the applicants do not claim to have a current or specific profile of their own among many of the groups that have been harmed and targeted by terrorist attacks, imputed or otherwise, including, belonging to a conspicuous religious minority, a political party or movement or members of the security forces. The Tribunal has accepted that the attacks and kidnappings may have occurred, as claimed, in Karachi and Pakistan more generally. The Tribunal accepts that this general violence and the lack of overall security in a random sense will foreseeably occur within metropolitan Karachi. However, the applicants face a chance of such serious harm that amounts to a remote or a far-fetched chance, and not one that amounts to real chance if they were to return to Karachi into the foreseeable future. In this regard, the Tribunal does not accept the applicants have a well-founded fear of persecution resulting from the general violence, should they return to Karachi in the foreseeable future.
117. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[30]
[30] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). The Court rejected the submission that ‘real risk’ was a higher threshold which required that the possibility of harm be more likely than not: per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; reflected in the Complementary Protection Guidelines: see Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1, as re-issued 29 February 2020. The Court in SZQRB was considering an international treaties obligation assessment conducted by an officer of the Department which had applied a test of ‘more likely than not’ when assessing ‘real risk’. Although that assessment did not directly apply s.36(2)(aa), the issue before the Court centred on the interpretation of ‘real risk’ for the purpose of the obligations codified in that provision. See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19] where the Court stated that the ‘real risk’ and ‘real chance’ tests appeared substantially the same
118. As the ‘real risk’ test is the same standard as the ‘real chance’ test, the Tribunal does not have substantial reasons for believing that the applicants, as necessary and foreseeable consequences of being removed from Australia to their home areas, will suffer a real risk of significant harm from generalised violence in Karachi, as required by s.36(2)(aa).
The applicants’ real chance of serious harm based on wealth/perceived wealth
119. Having considered the generalised violence in Karachi in the context of s.36(2)(a) and s.36(2)(aa), the Tribunal has considered the applicants’ various claims that the applicants will be targeted for violence by the TTP and other militant and criminals operating in their home area:
· The applicants will be perceived as wealthy as the first applicant’s father is or is perceived to be wealthy and influential due to lucrative water carriage contracts with the authorities, and will be targets for criminals and militants;
· The TTP have an ongoing interest in adduction of wealthy people and directly threatened the first applicant’s father and eldest brother on an ongoing basis and indirectly threatened other family members;
· The TTP know where the Karachi residence (outside of[City 1]) of the first applicant’s family is;
· The TTP are likely to abduct the applicants for revenge as the first applicant’s father informed the police that a now deceased Taliban commander had abducted him and four others;
· The applicants will be perceived to be wealthy as they have resided in a Western country for a notable about time;
· The first applicant’s surname, [name deleted], is recognisable with her father’s name and success; and
· While the first applicant’s family resides with relative safety in [City 1], the applicants will be vulnerable to abduction and other serious harm when attending medical and specialist appointments in other parts of Karachi.
120. Kidnapping for ransom has been described by one international consulting company as ‘commonplace’ in Pakistan, mostly targeting locals perceived to be wealthy (including returning Pakistani expatriates) and NGO workers, and carried out ‘not only by resentful individuals, but also by criminal groups of all levels, as well as militant groups’.[31]
[31] ‘Kidnap for Ransom Insight Report - November 2020’, Constellis, 30 November 2020, p.12, 20201208122229
121. The ‘commonplace’ characterisation of kidnapping for ransom is at odds with the earlier country information whereby DFAT reports that the rangers and police have arrested large numbers of people allegedly involved in kidnapping, robbery and extortion in Karachi in recent years. The Tribunal, accordingly, places little emphasis on this characterisation for the purposes of this review. The sharply declining numbers of such harmful acts has further invited the Tribunal to consider that the applicants do not face a real chance of serious harm or a real risk of significant harm from targeted abductions for ransom and extortion.
122. The Tribunal accepts that Pakistanis, including returnees, who are perceived to be wealthy do have a real chance of such harm. The applicants, however, have provided oral evidence that the first applicant’s family for some time has and for the foreseeable future will continue to reside within the[City 1]. They claim that the first applicant’s family continues to run the family business while her father is retired and her brother cannot travel outside of[City 1], It is not claimed that there have been any further abduction and extortion attempts against any family members belonging to the first applicant by extremists and/or criminals since 2014. In the case of the second applicant, he has not claimed any threats against him at all, although he fears being imputed with being perceived as wealthy arising from his marriage into the first applicant’s family.
123. Although the Tribunal accepts the applicants’ claims about the father of the first applicant informing the police about a now deceased Taliban leader being involved in the 2014 abduction; DFAT reports that government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, inducing the TTP, and military courts have tried and convicted individuals with links to terrorist organisations. The Tribunal notes one analysis from the website New America by Daud Khattak from August 2020 supporting the capacity of the authorities in Pakistan to undermine the effectiveness of TTP into the foreseeable future:[32]
The trajectory of a re-energizing Pakistani Taliban depends on Pakistan’s approach to countering it, and how Pakistan chooses to address its internal political and security situation. The Pakistani security forces are fully capable of degrading the TTP and its affiliates. The TTP has already been curtailed in Pakistan once. A peace agreement between the Afghan Taliban and Kabul government may also shrink the space for the TTP on the Afghan soil.
Yet a continued behind-the-scenes war among regional intelligence agencies, those of Pakistan, Afghanistan and India in particular, may provide a suitable environment for the TTP to survive.
Sympathy for the Taliban in Pakistan’s tribal districts and its cities has almost faded out. However, a failure to address genuine demands of the tribal people, who have suffered both due to the Taliban presence and the ensuing military operations, may shift the tide once again in favor of the TTP, as it shows signs of reconstituting its military and political structure.
[32] Whither the Pakistani Taliban: An Assessment of Recent Trends, by Daud Khattak, New America, 21 August 2020, Even as recently as June 2021, a Pakistani militant and former emir of the TTP, Noor Wali Mehsud was killed in a drone strike in Afghanistan.[33] At the time of making this decision, the Tribunal assesses that the effectiveness of the TTP in targeted abductions in Karachi and other large cities has been significantly curtailed for some time and it will continue to be into the foreseeable future. In this context, the Tribunal does not place significant weight on the first applicant’s father informing the authorities about the involvement of a senior Taliban commander in his abduction in 2014 given their degraded capacity in the large cities, as leading to a real chance of serious harm or a real risk of significant harm to the applicants for targeted attacks out of revenge or any other targeted reasons, by returning to Karachi.
[33] TTP chief Noor Wali Mehsud ‘killed’ in Afghanistan, by Mian Abrar, Pakistan Today The Tribunal accepts that the applicants would be returning from living in Australia as a Western nation, for an extended period of time and that will be a perception among some Pakistanis that this entailed some acquisition of wealth. However, there is little country information to support the claim that they will have a real chance of serious harm or a real risk of significant harm based on this membership of a particular social group, imputed or otherwise. The most recent DFAT report states:
Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship and familial shame. NGOs report that less than 0.5 per cent of returnees do not reintegrate and seek to go abroad again to seek asylum.
DFAT assesses 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. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate […].
126. Furthermore, Karachi, the capital of Sindh Province, itself is a vast and populous metropolis. Returning to such a vast city means the targeting of the applicants based on their perceived or actual and relative wealth of the first applicant’s family by any criminal or terror outfit, including the TTP, is substantially reduced given the applicants themselves have little profile or any aspects that would heighten their profile in being attacked.
127. The Tribunal, in this context, has considered the real chance of serious harm with regard to the applicants being attacked in terror outrages because of the third applicant being hospitalised due to her illness. This was raised in the Federal Circuit Court of Australia as the basis for remittal. As discussed in the scheduled hearing, the third applicant does not require regular visits to any hospitals due to the nature of the disability. She will, nonetheless, require frequent visits to schools, specialist services and medical appointments within Karachi, not necessarily within [City 1], for the foreseeable future.
128. Whether the applicants, individually or in combination with each other, are travelling to and from home for employment, provisions, family visits, schooling, medical and related appointments at clinics or with specialists or even hospitalisation due to unexpected and other events, the Tribunal remains unsatisfied that the applicants will face a real chance of being targeting based on their perceived or actual wealth in accessing specialist services and/or for having any association with the applicant’s family or for any related reasons under s.5J(1)(2) or due to a random attack or attacks on other religious groups and other minorities targeted by terror groups into the foreseeable future if they were to return to Karachi. This is because the Tribunal finds that the tempo and intensity of such attacks on hospitals and other soft targets, both random and targeted, cumulatively considered, does not amount to the applicants facing a chance that is more than a remote and far-fetched chance of serious harm – this is to say, a real chance of serious harm, if they returned to their home area within Pakistan.
129. In the context of the available country information and the passage of time since the abduction of the first applicant’s father in 2014, the Tribunal finds that the other aspects of the applicants’ claims that they will be targeted, cumulatively considered, only marginally increase the chances or risks of the applicants facing targeted harm by militants and criminals. This includes the first applicant’s surname and association with her now retired father, the association with lucrative [business] contracts, and ongoing direct and indirect threats which have not led to further incidents of serious harm back in Karachi.
130. The Tribunal does not accept the applicants could not avail themselves to the authorities for their protection or that protection will be denied to them for any of these claimed reasons. The authorities clearly take abductions for ransom by militants and criminals operating in their home area seriously, as noted by the decline in attacks and abduction in Karachi and throughout Pakistan. That is not to say the authorities failed to adequately act when the father of the first applicant’s father after making a FIR in 2014. However, the authorities did end up killing the TTP leader specifically involved in that incident. Indeed, the fact that the first applicant’s family have been given permission to live in [an area] within Karachi on a long term basis requires a healthy degree in wealth and savings for rent as well as influence among the authorities. These facts strongly indicates that the applicants will not be denied effective protection by turning to Karachi. The Tribunal notes there has been a thread of vague written and oral evidence that the authorities have not paid some monies to the [business]. However, the overall circumstances provided by the applicant indicate both ongoing and foreseeable wealth and influence with Karachi society. Indeed the family’s actual wealth has been critical as to the applicants’ claims they are targeted, despite the passage of time. In this regard the applicant does not have a well-founded fear of persecution as effective measures are available to the applicants in their receiving country, including Karachi, as required by s.5J(2).
131. The Tribunal does not accept that the applicants face a real chance of serious harm whereby they will be kidnapped, subjected to threats of abduction, ransom or being killed, attacked and/or kidnapped by TTP, other extremists, criminal or gangs, on a targeted basis. It finds the chances of being harmed in such a way, even when taking into account the applicants’ accepted circumstances for having a notable profile, including perceptions of family wealth, actual family wealth, as failed asylum seekers from a Western country, family association and ongoing threats to their family by the TTP, vengeful or otherwise, or as a soft target visiting appointments throughout Karachi, are remoted and far-fetched. In reaching this decision, the Tribunal has placed particular emphasis on the improvements in the security situation in Karachi, the passage of time since the relevant serious incident of abduction and the lack of harmful events since that incident. As such, the Tribunal has found that there is no real chance the applicant will be seriously harmed if she returns to Pakistan. Accordingly, the Tribunal is not satisfied that the applicants face a chance amounting to a real chance, of persecution for a nexus reason mentioned under s.5J(1)(a), if they return to their home area within their receiving country into the reasonably foreseeable future.
132. That is, in this regard, the applicants do not have a well-founded fear of persecution by returning to their home area in Pakistan into the reasonably foreseeable future, as required by s.5H(1) and s.36(2)(a).
133. As the ‘real risk’ test is the same standard as the ‘real chance’ test, the Tribunal does not have substantial reasons for believing that the applicants, as necessary and foreseeable consequences of being removed from Australia to their home areas, will suffer a real risk of significant harm from any militants or criminals targeting the applicants for the reason claimed and outlined above, as required by s.36(2)(aa).
134. As the ‘real risk’ test is the same standard as the ‘real chance’ test, the Tribunal does not have substantial reasons for believing that the applicants, as necessary and foreseeable consequences of being removed from Australia to their home areas, will suffer a real risk of significant harm based on the same circumstances, as required by s.36(2)(aa).
Real chance of serious harm arising from ethnicity and religion
135. Both the first and second applicant claim to be Pakistani Hazaras and that their ethnicity is Hazaras. The Tribunal notes that the first applicant claimed to be a member of the Awan caste or tribe and that her husband belonged to a different caste or tribe, the Tanoli.
136. During the hearing, the Tribunal sought clarification as to their ethnicity as it could be confused with the Hazaragi-speaking or Dari-speaking Hazaras from central Afghanistan who have migrated to Pakistan and many of whom have become citizens, especially in Quetta in the Pakistani province of Balochistan. The second applicant elaborated that they belong to an ethnicity called Hazara (or Hazarewal) based in the north eastern part of Khyber Pakhtunkhwa. The first and second named applicants claimed to have the capacity to speak the Hindko dialect as well as Urdu. Hindko is the language or dialect most closely associated with Hazara comprising of seven districts east of the Indus river: Abbottabad, Battagram, Haripur, Mansehra, Upper Kohistan, Lower Kohistan and Torghar. A significant population of Hazaras or Hazarewal people are also living in Karachi, usually in Pashtun areas.
183. Taking the mental health impact of all the applicants into account, the Tribunal is not satisfied that the applicant’s mental health conditions is the essential and significant reason or one of the reasons for that serious harm as required under s.5J(4)(a) as the Tribunal is not satisfied that having a mental health condition or conditions is one of the reasons mentioned under s.5J(1)(a), if she were to return to their home area of Karachi or Pakistan more generally into the reasonably foreseeable future. Furthermore, the Tribunal accordingly finds that the applicants do not face a real chance of serious harm for a reason mentioned in s.5J(1)(a), arising from their mental health status.
184. With regard to complementary protection provisions, the Tribunal accepts that the applicants will suffer real risk of harm, but the harm will not amount to significant harm in the context of availability of mental health services and stigma and discrimination based on mental health status. There is no suggestion any harm intentionally inflicted is due to denying the applicants services at the same standard as it is provided in Australia by the authorities in Pakistan that would amount to torture, to being subjected to cruel or inhuman treatment or punishment or to being subjected to degrading treatment or punishment. The Tribunal does not accept the real chances of stigma and discrimination in Pakistan arising from mental health problems to be faced by the applicants, amounts to serious harm.
185. The Tribunal notes suicidal ideation in the first applicant has been identified as a mental health symptom. With regard to the first applicant having her life arbitrarily deprived though suicide, the Tribunal also notes the recent Federal Court findings in CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 which upheld the Tribunal’s decision that self-inflicted harm does not fall within the concept of harm to which s.36(2A) is directed, principally because the language used in s.36(2A) of depriving or subjecting points to the involvement of other persons, usually the government or somebody with sufficient power or authority to perpetrate such acts. With this case law in mind, the Tribunal finds that there is no substantial reason to believe that the applicants, as a necessary and foreseeable consequence of their removal from Australia to Pakistan, will suffer a real risk of significant harm arising from their overall mental health. There is, of course, no suggestion of capital punishment, in this matter.
186. In this regard and based on the Tribunal’s abovementioned findings about the real risks of significant harm, the applicants do not satisfy the Act’s complementary protection provision based on the applicant’s accepted mental health conditions, if returned to either Karachi or Pakistan more generally.
Late claim about the applicants’ economic circumstances
187. In the applicants’ representative’s legal submission dated [in] September 2020, a late residual claim regarding the applicant’s economic circumstances was raised. It states that the second applicant will need to work and that he will be the sole bread winner of the family. It further stated he had been living in Australia since 2009 and that resettling in Pakistan would mean beginning afresh at a time when an unemployment rate at 6.1 percent in 2019 was very high. It further states the second applicant is likely to be unemployed for a substantial period of time and that this will impact on the treatment required for the third applicant. The submission also mentioned that average earnings of a Pakistani is 170,000 rupees per year and that such adversely impacted on the long-term ability of the applicants to access consultations and prolonged use of medications.
188. The Tribunal accepts that the first applicant will primarily be preoccupied as a carer of the third applicant while the second applicant will be the primary bread winner of this family unit. It accepts the second applicant will face challenges to find and maintain remunerative work in his home area of Karachi.
189. During the hearing, the second applicant informed the Tribunal that he has a diploma in[two different areas of study]. He mentioned that he had worked in sales in [another country]but not in the field related to [his studies]. He also said that he had treatable health conditions including high cholesterol, fatty liver and stomach problems, as well as living with a degree of mental stress. The Tribunal does not assess the combined impact of the second applicant’s physical and mental health as significant barriers to participating in the labour market or that the applicants cannot survive in returning to Karachi. Neither does the Tribunal assess there are any significant labour market barriers arising from the second applicant’s work ethic, his educational attainment, his linguistic background, his ethnicity, his caste and religious background or political opinions, imputed or otherwise, or any earlier membership of any particular social groups or any other reason mentioned under s.5J(1)(a), if returning to Karachi. While it is accepted the second applicant will face challenges and difficulties in finding work and accommodation in the short term and being able to afford out of pocket expenses for mental health services, medicine and autistic support services over a longer period of time, the Tribunal notes the first applicant’s accepted claim that she belongs to a wealthy family. There is no suggestion the applicants are so estranged from their families they will not receive assistance, both materially and emotionally. Indeed it has been central to the applicants’ overall claims that one of the key reasons they fear being harmed is based on the first applicant’s father being a conspicuously successful and wealthy business who was abducted for ransom in 2014 and it was this familial association as wealthy that has been critical to their dispositive claims that they will be targeted for serious or significant harm in returning to Pakistan. This claimed wealth and influence have been accepted by the Tribunal as a credible. However, by advancing it, the applicants have undermined their arguments about them facing a real chance or a real risk severe financial hardship or not being able to survive by returning to Karachi. Neither has there been any suggestion the applicants are estranged from the first applicant’s father. It reasonably follows from this then that the applicants belong to a wealthy family who will be able to assist the applicants in resettling within Karachi and on a longer-term basis to afford health and other services. The Tribunal does not assess the applicants, as a whole, will encounter a real chance of a standard of living at or below subsistence levels even when accounting for private medical and other costs. The applicants, therefore arising from this late claim, do not have a real chance of significant economic hardship, the denial of access to basic services or the denial of capacity to earn a livelihood of any kind, where the denial threatens the applicants’ capacity to subsist or any other serious harm non-exhaustively listed under s.5J(5) or as required by s.5J(4)(b), in returning to Karachi for the foreseeable future. In this regard, the applicants do not satisfy s.36(2)(a).
190. With regard to the complementary protection provision, the Tribunal similarly accepts there is a real risk the applicants will face economic challenges and difficulties if they were to return to return to Pakistan. As mentioned above, significant harm is different from the concept of serious harm as required by s.91R(1)(b) in the context of s.36(2)(a). With this in mind and taking their economic circumstances outlined above, it does not accept the applicants will face harm that will amount to any significant harm, including being subjected to torture, being subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment as required by s.36(2A). The Tribunal accordingly does not have substantial reasons for believing the applicants, cumulatively considered, will suffer a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to their home area within Pakistan, based on the applicants’ economic circumstances, broadly considered, under s.36(2)(aa).
Cumulative findings
191. This matter has been complex, with multiple written submissions and many hours of oral evidence. Since it was first lodged with the Department, new dispositive claims have emerged over time. Since the Federal court remittal, the applicants have been provided an opportunity to provide oral, written and documentary evidence as well as third party statements. The third applicant’s disability and the claims arising from it have particularly contributed to the complexity. It has obviously been arduous and distressing for this family, the applicant should know that the Tribunal takes no pleasure in affirming the decision not to grant protection visas for the reasons outlined above. Nonetheless, the Tribunal is satisfied that the applicants, supported by legal representation, have had a fair opportunity to provide evidence and present arguments during this de novo merits review application. The Tribunal wrote specifically to the applicants to comment on country information about mental health services and autistic services in, as well as about the impact of stigma and discrimination towards autistic persons in Pakistan. It did so in the light of the evidence about the applicant’s mental health problems and a careful assessment of the available country information. The Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s.425 of the Act.
192. It is noted that the second applicant claimed that his marriage was not approved by a few family members. The Tribunal did not find it materially relevant and cannot find any reason arising from it that the applicants’ have a well-founded fear of persecution for a nexus reason or a real risk of significant harm in returning to Pakistan.
193. There are no more residual claims to address in this application for review.
194. The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real chance of them being subjected to serious harm in Pakistan in the reasonably foreseeable future.
195. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicants would face serious harm for these reasons if they return in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
196. Having assessed all of the applicants’ claims under s.36(2)(aa) of the Act, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk of significant harm, including risks that the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subject to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required by s.36(2)(aa) of the Act.
Conclusion
197. 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
198. The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
MemberANNEXURE A
The Tribunal has considered the following country information about the overall security situation and the effectiveness of recent security operations in Pakistan from the DFAT country information report on Pakistan dated 20 February 2019:
Security Situation
2.66 The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67 Overall, there was a 29 per cent 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. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68 Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
2.69 The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit- Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
2.70 Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community (see Religion and Ahmadis). Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.
2.71 Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti- Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and anti-Shia sectarian groups).
2.72 The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.
[…][…]
Security Operations
2.75 The Pakistan armed forces (see Military and Intelligence Services) have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups (see Police, Frontier Corps and Rangers and Military and Intelligence Services).
2.76 In December 2014, the APS attack (see Education) led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP 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.
2.77 Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.
2.78 In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured (JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province.
2.79 Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.
2.80 In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).
2.81 Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations (see Judiciary, and Military and Intelligence Services). Nonetheless, militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces (see Military and Intelligence Services).
2.82 Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).
[…][...]
Armed Groups
2.83 While terrorist attacks declined in 2017 and 2018, armed groups remain a threat to Pakistan’s domestic security and Pakistan-based terrorist groups remain a threat to Pakistan's neighbours, particularly India. Armed groups can be generally categorised into four main groups: anti-state militant groups such as the TTP, sectarian militant groups, anti-Indian and Afghan-focused groups, and secular nationalist groups, such as the Baloch militants. However, the variety of forms of extremism in Pakistan feed off each other and the dividing lines between the various groups is often blurred.
Anti-Pakistan Sunni groups and anti-Shia sectarian groups
2.84 Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.
2.85 Hizbul Ahrar (HuA), formed from a split within TTP-Jamaat-ul-Ahrar (TTP-JA) in November 2017, and claimed a large number of attacks in Pakistan and Afghanistan in 2018. HuA targets law enforcement agencies, and attacks have ranged from small scale IED attacks to complex, multiple attacker or successive attacks across multiple locations.
2.86 The UN listed Jamaat ul Ahrar (JuA), an autonomous faction of the TTP, as a terrorist group in 2017. JuA was involved in 15 terrorist attacks (all in Khyber Pakhtunkhwa), killing 11 and injuring 16 in 2018 (compared to 37, killing 123 and injuring 306 in 2017). JuA leadership reportedly has close ties to al-Qaeda. Smaller militant groups in Khyber Pakhtunkhwa and the former FATA, labelled the ‘local Taliban’ for their TTP sympathies, carried out 28 terrorist attacks in 2018 (compared to 29 in 2017).
2.87 Banned in 2008, Lashkar-e-Islam (LI) is a militant group based in Khyber Agency, former FATA, which has had contact with ISIL’s Khorasan chapter in Afghanistan. LI was involved in 10 attacks in 2018 (compared to 21 in 2017, 19 of which were in Khyber Agency).
2.88 ISIL is active in Pakistan, and its regional affiliate Islamic State in the Khorosan Province (ISKP) has heavily drawn on ex-TTP for its membership. ISKP increased its operations in 2017 and 2018. ISIL had the highest death toll, and conducted five major attacks, killing 224 and injuring 301 in 2018 (compared to six major attacks, killing 153 people and injuring 380, and kidnapping and killing two Chinese nationals in Quetta in 2017). ISIL had a more significant presence in Balochistan and northern Sindh, and became increasingly involved in sectarian terrorist attacks in Pakistan and Afghanistan in 2018. ISIL was also the most lethal group during the 2018 elections, with an attacks on a political polling station near Quetta and on a political gathering in Mastung killing over 180 people in 2018. While the government denies that ISIL operates in Pakistan, security forces have claimed operational success against ISIL. JuA, factions of the TTP and Lashkar-e-Jhangvi (LeJ) Al-Alami reportedly have operational links with ISIL. It remains unclear whether IS directly commands attacks in Pakistan, or whether it claims attacks conducted by sympathetic militant groups. Security experts suggest the increasing number of successful attacks indicates ISIL is conducting its own activities. Regardless, ISKP is able to use local anti-Pakistan networks to project strength and grow.
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.
2.90 Several other banned Sunni militant groups continue to operate throughout Pakistan, including Sipah-e-Sahaba Pakistan (SSP, also known as Ahle Sunnat Wal Jamaat or ASWJ) and Jaish-e Mohammad (JeM) (see India-focused Sunni groups). Shi’a militant groups such as Sipah-e-Mohammad Pakistan (SMP) have attacked Sunnis, although Shi’a militancy has declined as the security situation has improved. SMP reportedly acts primarily in Punjab province to attack Sunni militant groups such as LeJ and SSP, and was responsible for targeted killings of Sunnis in Karachi and Quetta in 2014. DFAT is not aware of any major attacks by SMP or other significant Shi’a militant organisations in recent years, although Shi’a have killed suspected Sunni militants.
2.91 The frequency of sectarian attacks has reduced annually since the launch of Zarb-e-Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017.
ANNEXURE 2 - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
Immigration
Statutory Interpretation
Legal Concepts
Judicial Review
Jurisdiction
Natural Justice
Procedural Fairness
Standing
Statutory Construction
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Citations1827157 (Refugee) [2021] AATA 4675
Cases Citing This Decision0
Cases Cited6
Statutory Material Cited0
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20