2002361 (Refugee) - [2024] ARTA 532

2002361 (REFUGEE) [2024] ARTA 532 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2002361

Tribunal:General Member M Simmons
Date:23 October 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 23 October 2024 at 6:10pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Muttahida Qaumi Movement (MQM) Party worker – race – Muhajir – political activities in Australia – return visits to Pakistan – extrajudicial killings – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a national of Pakistan, applied for the visa on 11 September 2017.
The applicant appeared before the Tribunal on 17 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages, though the applicant elected to engage with the Tribunal directly in English for most of the hearing.
The applicant was represented and the representative attended the Tribunal hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant claims he is a Muhajir, adherent to Sunni Islam and that he originates from Karachi in Pakistan’s Sindh Province. He first arrived in Australia in June 2014 on a student visa. He made return visits to Karachi in 2015 and 2016. He was married in 2015 and has a child of that relationship, though has since separated for his partner.
Evidence before the Department
·Protection visa application and accompanying statutory declaration sworn 11 September 2017.
·A legal submission dated 29 April 2019.
·Supporting documents including letters of support, photographs, media reports, social media evidence including from Twitter, Facebook and YouTube.
·The interview with the delegate on 1 May 2019.
Evidence before the Tribunal
·Pre-hearing submissions dated 10 September 2024, provided with letters of support and other supporting material.
·Statutory declaration with supporting material attached, sworn 10 September 2024.
·The hearing on 17 September 2024.
·Post-hearing submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Protection claims
The material details concerning the applicant’s past experiences and future fears, as set out in the visa application, can be summarised as follows:
·The applicant is a long-term supporter and worker in Pakistan’s Muttahida Qaumi Movement (MQM) Party, led from London by the Movement founder, Altaf Hussain, to whom the applicant remains steadfastly loyal, notwithstanding the factional split in the Movement in 2017;
·Since joining MQM as a secondary student he was promoted to a number of MQM ‘sector in-charge’ positions and worked variously for the student wing and [a specified] unit at Party headquarters in Karachi;
·Due to his oratory skills, he was identified and nurtured by MQM leadership He appeared before a [large rally] ahead of the 2013 general elections in Pakistan [details deleted];
·A crackdown by Pakistan authorities occurred on MQM workers in the wake of the 2013 general elections. The applicant was urged by Altaf Hussain to go abroad and remain there until the situation became conducive again to engage in political activities;
·He entered Australia in June 2014 from where he continued to engage with MQM activities, protests and meetings. He continued his MQM social media activism;
·In March 2015, Karachi Rangers raided the MQM headquarters, [named], during which a close friend and fellow MQM worker, [named], was killed.
·In October-December 2016 he returned to Karachi, at the direction of Altaf Hussain, for the purpose of attending protests and meetings associated with the eventual fracture of MQM;
·Following the fracture, the applicant remains loyal to the original party founded by Altaf Hussain and led from London by Altaf Hussain, now known as MQM-London (MQM-L), as opposed to the breakaway party, MQM-Pakistan (MQM-P);
·In 2018 Altaf Hussain endorsed the applicant’s appointment to [a] committee in Australia, tasked with [organising] the Movement’s overseas [activities];
·He remains active on social media, posting content at times critical of the Pakistan government and army, and uploading videos of activities by MQM [in Australia], which remains loyal to MQM-L, whilst also [discussing policies];
·The applicant fears that he will be targeted for harm for reason of his heightened MQM-L profile, should he return to Pakistan;
·He cannot relocate to other parts of Pakistan because wherever he goes he will continue to engage in political activities supporting the MQM-L.
A large amount of further material was provided to the Tribunal which mostly relates to developments in the applicant’s political career in the five years since the delegate’s decision. The pertinent details related to the applicant’s protection claims raised in the material before the Tribunal can be summarised as follows:
·Since moving to Sydney the applicant has had on going involvement with MQM-L. He was made a committee member [two committees in Australia]. He regularly [organises] MQM events.
·He was appointed a members of [a specified] Team. In this capacity regularly posts MQM content across various platforms and has helped [with specified tasks]. During this time he has built a large social media following, [with large numbers of] followers, with who he frequently shares MQM content.
·In February 2023, MQM-L Leader Altaf Hussain promoted the applicant to [Committee 1]. This is [a higher responsibility within] MQM-L.
·The applicant now attends [frequent] meetings with Altaf Hussain and the [Committee 1]. He frequently [works] with media and [presents] MQM-L positions on various issues, and disseminates this information directly himself across [social media] [accounts].
·The applicant [works closely with Altaf Hussain]. The applicant considers him as [the father] of Muhajirs and minorities. The Pakistani authorities target anyone close to Altaf Hussain and who supports MQM-L.
·In addition to criticising the Pakistani authorities, Inter-Services Intelligence (ISI) and Army, the applicant openly calls out religious extremists like the Taliban and other religious militant groups.
·The applicant was part of the MQM-L [Committee organising] for the 2024 general election. He was involved in interviewing and selecting candidates, and worked with candidates in providing resources for their campaigns. The applicant [organised] the press conference in which Altaf Hussain announced the MQM-L candidates for the 2024 election.
·A number of MQM-L candidates were abducted or harassed by the ISI during the election, as has been reported in the media. It is claimed that some of the abducted candidates were specifically questioned about the applicant.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm were he to return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity and background
The applicant provided a copy of his Pakistani passport. The detail in that document corroborates his claimed identity and nationality. I accept that the applicant is who he claims to be and that he is a national of Pakistan. Pakistan is the receiving country for the purpose of this assessment.
Political profile
The applicant and I discussed his involvement with the MQM-L. He provided detailed and spontaneous responses to my questions which I found to be persuasive. Much of his oral evidence is corroborated by the supporting material provided to the Tribunal.
The delegate accepted the applicant’s claims in respect of his political conduct and history as an MQM supporter and worker was credible. However, she was not satisfied, on the profile she accepted the applicant holds, that country information supported a finding that he faced a real chance of serious harm owing to his political opinion. I have before me a considerable amount of information which post-dates the delegate’s decision. This material indicates that in recent years the applicant has had sustained and increased involvement with the MQM-L.
The applicant provided a letter dated [in] September 2024 from MQM-L Leader, Mr Altaf Hussain. In addition, Mr Hussain was made available to the Tribunal as a witness. I decided not to take oral evidence from Mr Hussain, as I found the letter he provided to be detailed, reliable and broadly consistent with the material before me. I did not need to seek clarification or elaboration from him. The letter supports the applicant’s claimed lengthy and committed involvement with the MQM-L, including detailing his appointment to the [Committee 1] by Mr Hussain and his role in [work with] MQM-L social media. I afford significant weight to this letter, and note Mr Hussain’s willingness to speak in support of the applicant’s matter.
The applicant also submitted material demonstrating his close [association] with Mr Hussain. He has provided screen shots from various video calls between himself and Mr Hussain. Given the change in the applicant’s appearance, it seems that these calls occurred over an extended period. He also gave financial records showing he sent Mr Hussain [a gift] after he had a significant legal win, and a subsequent [message] in which Mr Hussain sent the applicant a photo of himself holding the [gift]. There are also screen shots showing the applicant and Mr Hussain appearing in [videos]
I note that other [Committee 1] members [named] also provided letters in support of the applicant’s involvement with the MQM-L and the [Committee 1], and were available to give oral evidence to the Tribunal. I did not take oral evidence from these persons, as I consider [these] letters were detailed and consistent with the applicant’s evidence.
In his oral evidence, the applicant detailed his activities and responsibilities on the [Committee 1]. He discussed how he balances this work with his other commitments and responsibilities, and how this is managed when Committee members are spread across various time zones. The applicant’s appointment to the [Committee 1] was announced on the MQM-L’s website and is reflected in party documentation before me, in addition to being raised in Mr Hussain’s letter. Furthermore, media articles from sources including [sources named] attribute quotes to the applicant and name him as a member of the MQM-L [Committee 1].
The applicant discussed his considerable social media following related to the MQM-L. He has provided a large amount of evidence from [social media platforms] which supports his claims to have responsibility for [producing] social media content for MGM-L. The applicant is visible in some of the social media posts depicted in the material submitted, as is Altaf Hussain. Those posts contain commentary on a variety of topics related to Pakistani political affairs, including elections, corruption, political violence, minority rights and religious extremism. Many appear to be critical of different branches of the Pakistan authorities.
During the hearing the applicant demonstrated that he accesses the MQM-L social media accounts on his personal phone, including by logging in to the [specified] account he uses to disseminate MQM-L material. I note that the applicant [appears] in much of the social media content. There is evidence before me showing the applicant broadcasting numerous live videos from [platforms] in which he discusses MQM-L matters. [This] account currently has over [number] followers. [Related account details] both contain the applicant’s personal name. The bio for the account states he is a “Member of MQM [named] committee”, and contains a link to the party website.
In light of the extensive reliable information before me, and the applicant’s detailed and persuasive oral evidence, I accept that his political profile is a claimed. I accept he is a longstanding and committed MQM-L worker and supporter, who has a close [association] with Altaf Hussain and [appears] in MQM-L media content alongside Mr Hussain. I accept the applicant [currently produces] MQM-L media and social media [content], and that he has repeatedly criticised the Pakistani authorities online to a large audience. I also accept the applicant is a member of the MQM-L [Committee 1], and in this capacity he contributes to the strategic direction of the party, gives media interviews, and has been involved in a range of matters including election preparation and strategy.
Does the applicant satisfy the refugee criterion for protection?
Mutahidda Qaumi Movement (MQM)
Reporting before me describes the MQM a Karachi-based secular political party which advocates for the rights of Muhajirs (Urdu-speaking Muslim migrants from India and their descendants). The MQM has been involved in widespread political violence in Karachi as its militants fought government forces, breakaway factions and militants from other ethnic political movements.[1]
[1] Australian Department of Foreign Affairs and Trade (‘DFAT’), Country Information Report Pakistan, 25 January 2022; Zoha Waseem, ‘A House Divided: Karachi’s Politics Remain in Flux’, Carnegie Endowment for International Peace, 3 May 2022; Niloufer A. Siddiqui, ‘Who Owns the Guns? the Muttahida Qaumi Movement and Violence in Karachi’ from ‘Under the Gun Political Parties and Violence in Pakistan’, Cambridge University Press, 18 November 2022.
MQM Founder Altaf Hussain, requested and was granted asylum in the UK in the 1990s, and later gained UK citizenship.[2] On 22 August 2016, Altaf Hussein made a speech from London that provoked violence when addressing a protest in Karachi, leading to a split between MQM-London (MQM-L) and MQM-Pakistan (MQM-P). Media reporting indicates in that speech Hussain described Pakistan as a “cancer for the entire world”, a “headache for the entire world”; and that Pakistan “is the epicentre of terrorism for the entire world”. He then suggested that the protesters move on to two media houses where violence ensued.[3]
[2] BBC News, ‘Altaf Hussain: Pakistan MQM founder charged over 'hate speech' in UK’, 10 October 2019.
[3] Subramanian N, The Indian Express, ‘Altaf Hussain: Once ‘king’ of Karachi, he now wants asylum in India’, 22 November 2019; BBC News, ‘Altaf Hussain: Pakistan MQM founder charged over 'hate speech' in UK’, 10 October 2019.
Soon afterwards, the paramilitary Rangers commenced operations in Karachi that significantly reduced political violence, but which MQM claims involved arbitrary arrests, extrajudicial killings and enforced disappearances of its members, abuses which allegedly still occur.[4] The MQM headquarters were sealed off and its offices bulldozed, followed two years later by a collapse in votes at the polls.[5] The MQM-L allege that since the crackdown security forces have abducted its members and others expressing support for their founder. There were also numerous media reports of arrests of MQM-L members suspected to be involved in criminal activities and targeted killings.[6]
[4] DFAT, Country Information Report Pakistan, 25 January 2022.
[5] Saad Sayeed and Ashraf Khan, Agence France Presse, ‘Party with violent past reborn in Pakistan’s
[6] United Kingdom Home Office (‘UKHO’), Pakistan: Country policy and information note: political parties and affiliation, 24 May 2023.

In November 2020 the Federal Investigation Agency [Pakistan] included Altaf Hussein on its ‘most wanted terrorists’ list, although MQM-L is not a proscribed organisation in the UK or Pakistan. Altaf Hussein was arrested in London in June 2019 on charges of encouraging terrorism in Pakistan through hate speech. Following a trial at the Old Bailey, he was acquitted on 15 February 2022.[7]
[7] UKHO, Pakistan: Country policy and information note: political parties and affiliation, 24 May 2023.
Recent reporting documents the continued targeting of persons aligned with MQM-L in Karachi. In July 2023, several MQM-L workers were arrested after a public rally in Korangi area of Karachi. Police and Rangers conducted raids in Korangi and Landhi to arrest the MQM-L workers who had attended the public rally. The senior officers told the media that MQM-L was involved in "anti-state activities".[8]
[8] ANI media, ‘Pakistan: Security institutions to intensify crackdown on MQM London’, 10 July 2023.
In the lead up to the most recent elections in 2024, candidates aligned with MQM-L were subject to arrest and harassment.[9] The MQM-P subsequently secured most of the seats in Karachi in a success analysts say was engineered by the military to keep out MPs loyal to jailed former prime minister Imran Khan. In return for supporting the military-backed Pakistan Muslim League-Nawaz (PML-N), analysts predict the MQM-P will be rewarded with a handful of federal ministries and its choice of governor of Sindh province.[10]
[9] Naimat Khan, Arab News, ‘Candidates backed by Altaf Hussain’s MQM arrested ahead of national polls in Pakistan’s southeast’, 6 February 2024; Voice Pakistan, ‘Son of MQM’s Nisar Panhwar urges authorities to release his father and brother, threatens street agitation,’ 17 February 2024.
[10] Saad Sayeed and Ashraf Khan, Agence France Presse, ‘Party with violent past reborn in Pakistan’s
The August 2024 death of an MQM-L worker Naeem Akhtar in Karachi, who was being held in judicial custody, ignited protests from party supporters worldwide. Akhtar was detained in March 2019 and reportedly made to sign a confession under duress, after severe torture, that he was directly involved in terrorism and the killing of a political rival. He was subject to charges under the Anti-Terrorism Act. [11] This Act was reportedly amended in 2014, to allow for the “systematic policing and punishment of the city’s primary political party at the time – the MQM”.[12]
The applicant’s risk profile
[11] Xari Jalil, Voicepk, ‘Court order was disregarded before MQM activist’s death under jail custody’, 24 August 2024.
[12] Zoha Waseem, ‘Inside the Punitive State: Governance Through Punishment in Pakistan’, Carnegie Endowment for International Peace, 20 June 2024.
I asked the applicant about his return travel to Karachi in 2015 and 2016, despite the risks to persons associated with Altaf Hussain and the MQM-L at that point in time. I expressed to him that I had concerns he would make numerous return trips to Karachi after, he claims, moving to Sydney for his safety in 2014. I put to him that it was not, on its face, conduct suggestive of him fearing harm in that city at that point in time. Moreover, that he was able to freely enter and depart Pakistan on these occasions was not indicative of him having a profile of interest with the authorities at that time. He indicated he had family commitments, noting his marriage and the birth of his child occurred around this time. He also alluded to having MQM duties in Karachi during these visits, because of the perilous situation the organisation faced at that time. He suggested that he played a role in [negotiations] with the [authorities]. The applicant suggested he was fearful on these return visits, but that he felt his obligations to the party and his then wife were also important.
There is a large amount of publicly available information, a sample of which has been submitted to the Tribunal, which demonstrates that the applicant is a close supporter of Altaf Hussain and a prominent MQM-L office holder. I take into account that much of this postdates his last visits to Karachi in 2015 and 2016. Moreover, since then he has been appointed to notably more senior roles within the MQM-L, in particular the [Committee 1] in 2023. His social media activism on behalf of the MQM-L has also mostly been carried out since his last visit to Karachi. I consider the applicant’s present political profile is markedly more elevated than that which he held in 2015 and 2016, and I consider the situation he would face in Karachi in the foreseeable future would be quite different to that experienced during his last return visits there.
I asked the applicant about the reporting from a variety of sources that suggest the MQM, both in its original form and its subsequent factions, has engaged in violence to further its objectives. The applicant described MQM-L as a peaceful, democratic, liberal, anti-extremist movement. He suggested that the negative commentary in respect of MQM-L did not accurately reflect past incidents as they in fact occurred and were part of an orchestrated campaign by the Pakistan army and authorities to undermine the MQM-L and Mr Hussain. Similarly, Mr Hussain’s letter to the Tribunal asserts that he is the “only liberal leader who spoke out against religious extremism and exposed the corrupt practices within the government and military regime, which has resulted in systematic ethnic cleaning of Muhajirs”. He also asserts that his followers have been subject to human rights abuses including murders and disappearances, as has been documented by international human rights organisations.
Other reporting suggests that Mr Hussain forged the MQM from Karachi's ethnic discontent when frustration was raging among the majority Muhajir population. MQM workers clashed with other ethnic groups and the security forces, unleashing a wave of bloodshed that regularly shut down Karachi.[13] Researchers suggest the historically MQM engaged in direct party violence to their advantage in an ethnically polarised Karachi, maintaining a captive support base among the Muhajir ethnic group, who perceived few alternative options available for purposes of political representation.[14]
[13] Saad Sayeed and Ashraf Khan, Agence France Presse, ‘Party with violent past reborn in Pakistan’s
[14] Niloufer A. Siddiqui, ‘Who Owns the Guns? the Muttahida Qaumi Movement and Violence in Karachi’ from ‘Under the Gun Political Parties and Violence in Pakistan’, Cambridge University Press, 18 November 2022.
There is no information before me to suggest that the applicant engaged in or encouraged violence or criminal activities for the MQM-L or its predecessor party at any time.
The applicant has evidenced a strong and sincere devotion to Altaf Hussain and the MQM-L, through convincing oral testimony and substantial reliable documentary evidence. He has variously described Mr Hussain as being [like a] mentor. The applicant was well versed in Mr Hussain’s affairs, discussing with me the assistance he provided to Mr Hussain during various legal proceedings and other matters as reflected in the media reporting he submitted to the Tribunal. Mr Hussain, amongst others, confirmed the close [association] he has with the applicant in evidence to the Tribunal.
I also accept that the applicant has frequently criticised the Pakistan authorities on a variety of topics, to a very large online audience, as his social media evidence shows.
In light of his very prominent, visible role within the MQM-L, and his ardent support for Altaf Hussain, and his significant social media activism over many years, I consider he would be of interest by the Pakistani authorities. This is owing to his scenario held political views in favour of the MQM-L and Altaf Hussain, and opposed to the Pakistan authorities, as well as due to being imputed with a profile as a person associated with political violence due to his connection with Altaf Hussain.
Conclusions
I am satisfied that the applicant is a sincere and genuine political worker and supporter for the MQM-L and Altaf Hussain, and has been for an extended period. On this basis, I am satisfied that the considerable political conduct he has engaged in while in Australia was not engaged in for the sole purpose of enhancing his claim to be a refugee, but rather was carried on in furtherance of his sincerely held views. As such, s 5J(6) is not engaged.
On the totality of the material before me, I am satisfied the applicant faces more than a remote chance of harm in Pakistan due to being a very prominent and senior MQM-L worker, and a visibly close associate of Altaf Hussain. The applicant’s extensive and persuasive evidence supports that he has been an enduring and active MQM-L supporter connected with Altaf Hussain for some time, and I am satisfied he would continue to be so in the foreseeable future. Material set out above notes that Altaf Hussein has been designated as a terrorist by the Pakistani authorities, and that the MQM-L is subject to periodic crackdowns by the Pakistani authorities. Reports persist of arbitrary detentions and extrajudicial killings of persons involved with MQM-L. Relevantly, DFAT assesses that MQM members perceived to be associated with violence face a moderate risk of violence from security forces. Given the profile I have accepted the applicant holds with the Pakistani authorities, I am satisfied he may be perceived to be such a person.
I am satisfied the feared harm involves serious harm, as it may encompass significant physical harassment, arbitrary detention, or even death. I find that if returned to Pakistan the applicant faces a real chance of persecution owing to his political opinions, and those imputed on him by his association with Mr Hussain. These are the essential and significant reasons for the persecution. The persecution would involve systematic and discriminatory conduct against the applicant.
The applicant strongly identifies as an MQM-L and Altaf Hussain supporter, and emphasised that he opposes the MQM-P as he considers it to be a faction aligned with the Pakistan authorities and army. As set out above, I have accepted he has strong and sincerely held political views opposed to the Pakistan authorities. Media reporting referred to above indicates that the MQM-P is now in a coalition government in Pakistan with the PML-N. I am satisfied the applicant will continue to publicly support Altaf Hussain and MQM-L in the foreseeable future, and that it would not be an option for him to support the MQM-P in light of his deeply held views. This applicant cannot take reasonable steps to modify his behaviour to avoid persecution. Such steps would require him to conceal his true political views, and conflict with a characteristic fundamental to his identity, which is an impermissible modification per s 5J(3) (c)(iii) and (a).
As the Pakistan authorities are the agents of persecution I am satisfied that effective protection measures are not available. For the same reason, the real chance of persecution relates to all area of Pakistan.
For the above reasons, the applicant’s fear of persecution is well-founded. I am satisfied that he is a refugee per s 5H of the Act.
There is no indication on the material before me that this applicant has a right to enter and reside in any other country. S 36(3) is not engaged.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing:  17 September 2024
Representative:  Mr Mahalingam Sutharshan (MARN: 0961664)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

disillusioned metropolis’, 9 March 2024.

disillusioned metropolis’, 9 March 2024; Zoha Waseem, ‘A House Divided: Karachi’s Politics Remain in Flux’, Carnegie Endowment for International Peace, 3 May 2022.