2008565 (Refugee)

[2023] AATA 1856

2008565 (Refugee) [2023] AATA 1856 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008565

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Wayne Pennell

DATE:18 May 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act 1958.

Statement made on 18 May 2023 at 4:25pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – successful businessman with international links – extortion, threats and attempted kidnapping by extremist group – police report provided – relocation and continued threats – delay in applying for protection on advice of third party – coerced payments to third party for visa and business reasons – fear of harm from third party or connections – country information – deteriorating security situation – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulation 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Subramaniam v MIMA (1998) VG310 of 1997
Re Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant protection visas to the Applicants under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The Delegate’s decision was provided to the applicant on 7 May 2020.

2. The Applicants who claim to be a citizens of Pakistan applied for protection visas.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Pakistan, there was a real risk they would suffer significant harm. The Delegate refused to grant the visas[3] on the basis that the Applicants were not refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations.[5] 

   [2]The applicants’ application was received by the Department of Home Affairs on 11 May 2016.

   [3]The Delegate’s refusal was made on 7 May 2020.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

3. The Applicants were not represented in relation to the review, and they filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time, the Tribunal wrote to them and advised that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone.[7] 

   [6]The applicants’ review application was filed with the Tribunal on 21 May 2020.

   [7]The Tribunal advised the applicants on 31 March 2023.

4. The Applicants were invited to attend a hearing and give oral evidence and present arguments at that hearing.[8] The Applicants required the services of an interpreter to assist them to communicate with the Tribunal. 

   [8]The Tribunal’s review hearing was listed for 10 May 2023.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[10]  That is, the Applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   [9]Migration Act 1958 (Cth), s 36.

   [10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]

   [11]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[12]  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.[13]

   [12]Migration Act1958 (Cth), s 5H(1)(a).

   [13]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

   [14]Migration Act 1958 (Cth), s 5J(1).

   [15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

   [16]Migration Act 1958 (Cth), s 36(2)(a).

   [17]Migration Act 1958 (Cth), s 36(2)(aa).

   [18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]

    [19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

    [20]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY

12. The Applicants claim to be citizens of Pakistan and they have provided a copy of their passports to authenticate this claim. The Tribunal accepts the Applicants’ identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is the Applicants’ country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[21]

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the Applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[22]

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[23] 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.

    [23]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANTS’ CLAIMS

15. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to Pakistan, there exists a real risk that they will suffer significant harm or there is a real chance that they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[24]

    [24]Migration Act 1958 (Cth), s 36(2).

16. The mere fact that the Applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded, or that it is for the reason claimed. Similarly, because the Applicants claim they face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicants to satisfy the Tribunal that all the statutory elements are made out.

17. The Tribunal is not required to make the Applicants’ case for them. It is their responsibility to specify all particulars of their claim to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicants.[26]

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    Section 438 Certificate

18. The Tribunal was provided with the Department’s file in relation to the refusal to issue the Applicants protection visas. The Department had placed restrictions on documents contained within that file and issued a certificate pursuant to 438 of the Act.

19. The purpose of the certificates being issued was that the disclosure of nominated documents would be contrary to the public interest because it would disclose the lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

20. During the hearing, copies of the section 438 certificates were provided to the Applicants.  The certificates were signed, and they clearly relate with the public interest reasons on the certificates. No submissions were made by the Applicants in respect to the certificates and the validity of the certificates validity were not challenged.

21. The Tribunal has given regard to the public interest in protecting the Department’s methodologies and investigative methods and finds that it is not in the public interest to disclose the contents of the documents to which the section 438 certificates relate, and except in so far as it was discussed in broad terms in these reasons, the Tribunal has not provided the certified information to the Applicants.

    APPLICANTS’ BACKGROUND AND CLAIMS

    The Applicants’ background

22. The first Applicant claimed that when he lived in Pakistan, he was a successful businessman who held a reasonably high profile within his home region of [Location 1].  His extended family are also well known in the area and by the time he arrived in Australia, he had an extensive international travel history.

23. He was born and lived in [Location 1]. He described this as his hometown and it is where he went to school. His father has passed away, but his mother still lives there. He has a sister living in [Country], one sister has passed away and his third sister lives in [Location 1]. When he finished school, he went to college. For a period of about 16 years prior to travelling to Australia, he operated two businesses. One business was located in [Location 1] and this company supplied [Raw material] to [Product] factory. The second business involved the operation of [Facilities] inside a large [Venue] in Islamabad.

24. The first Applicant was previously married to his first wife, however, in 2010 she unfortunately passed away.  He has three children from his marriage with his late wife. They are referred to in the Delegate’s decision record as Dependent Applicants 3, 4 and 5. He is now married to the second Applicant, and he has a further four children. They are referred to in the Delegate’s decision record as Dependent Applicants 6, 7, 8 and 9. The ages of the children range from [Age] to [Age], with the youngest two children born onshore in Australia.       

25. The second Applicant was born in [City]. [City] and [Location 1] are situated [near] each other and are approximately [number] kilometres from Islamabad. Her mother passed away when the second Applicant was aged about [age].  She recalls going to school and can remember growing up in [City] with her father, her brother and her [sisters].  Her father has remarried and still lived in [City], as does her brother.  Her [sisters] live in [Location 1].

    The claims

26. The first Applicant claimed that in January 2015, he received a letter at work from Tehrik-e-Taliban Pakistan (TTP), demanding that he pay to them what he described as 10 crore rupee. A single crore rupee is 10,000,000 rupees.

27. The TTP is described in the DFAT Country Information report (‘DFAT report’) as being one of several domestic jihadist groups and networks which operate in Pakistan. While some of those groups are sectarian and mainly oppose the Pakistani state, the most prominent is the TTP. The TTP was established in 2007 and is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of a prominent female education advocate in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, and its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate.[27] 

    [27]The DFAT report, Pakistan, 25 January 2022, page 14, paragraph 2.39.

28. After receiving the letter from the TTP, the first Applicant called the police to report the threats he received. He said that the police told him not to worry. Three days after receiving that letter, he received a threatening phone call demanding he pay the money. He then met with the police to discuss the threats. He was advised by the police to hire his own personal security officers for protection. The police kept the note for handwriting analysis. Sometime later he received another note which also demanded he pay the money. Within that second note, there was a direct threat that he and his family would be killed if he did not comply. He contacted the police again and they advised they could not assist further. It was his belief that he was specifically targeted for extortion because his company supplied [Raw material] to a [Product] factory, and that factory eventually on-sold the [Product] to Afghanistan to assist the military coalition. 

29. The first Applicant told the Tribunal that on [date] February 2015, he survived an attempted kidnapping from two armed gunmen. He believes the people who attacked him were extremist fundamentalists from TTP and given the timing of the letters and the attempted kidnapping, the TTP were responsible. 

30. The first Applicant explained that apart from his business which supplied to a [factory], he also had another business which operated [Facilities] inside a large [Venue] in Islamabad. That [Venue] belonged to one of his cousins. On the day of the incident, he had been to the [Venue]. When he was about to leave the [Venue], his cousin asked if he could give two of the [venue]’s security guards a lift home as they had just finished their shift. The security guards got into his car, and with the first Applicant driving, they started their journey.

31. At some point the first Applicant stopped his car at a traffic light. His car was then approached by two men who were armed with what he described as rifles. One of them grabbed him by the arm. The [Venue] security officer seated in the back seat reacted by discharging his firearm out the window. It seemed to the first Applicant that this distracted the two gunmen, and it allowed him to speed off through the intersection. The two gunmen then fired their weapons, with the first Applicant thinking that they shot into the air because he later discovered that there were no bullet holes in his car. As they sped away from the gunmen, the security officer in the back seat told him that the two gunmen were in a car following them. After a few kilometres, he pulled into a petrol station to seek refuge. He then called the police.

32. The police arrived at the petrol station and the first Applicant filed a complaint. The police accompanied him home and remained with him and his family for some time.  Later, after the police had left his house, he received a telephone call at around 8:15pm. He described the caller as anonymous. This caller did not identify themselves but made threats to the first Applicant that he and his family will be killed. Immediately after that phone call, he contacted the police and some other influential contacts but was told that his future safety could not be assured. For the month following the attempted kidnap and the threatening phone call, he and his family confined themselves within their own home for safety reasons.

33. The Tribunal acknowledges that a police report about the attempted kidnapping exists within the Department’s material. This document is dated [date] February 2015 and shows that the first Applicant reported to the police that on that day, he was returning to his residential address when two armed people opened fired at him when he was stopped at a traffic light. The scene is described as being eight kilometres from the police station. The report goes on to indicate that he escaped and took shelter in a nearby petrol station. After a few minutes the police and rangers came to his aid. The Tribunal notes that within the report there is reference to the first Applicant receiving a threatening extortion letter a few days prior to the attempted kidnapping.

34. When assessing the credibility of this document and weighing that against the First Applicant’s claims and his testimony at the Tribunal hearing, the Tribunal accepts that his claims and his evidence are validated by the police report, and as claimed by him, the Tribunal finds that he was the victim of an attempted kidnapping on the day indicated in the police report. When considering the claims made by the first Applicant’s about the threatening letters and phone calls, when those events are looked at objectively and balanced against the events of the attempted kidnapping, the Tribunal also finds that his claims about the letters and phone calls to be credible.    

1. Further to that police report, the applicant has provided to the Tribunal copies of media articles reporting a number of kidnapping and extortion cases in the areas of Islamabad, Rawalpindi and Wah Cantt. He claimed that the one of the reports relates to one of his friends who was a contract worker at the [plant]. The TTP attempted to extort for a significant amount of money from him and attacked his house near Wah Cantt with a grenade in April 2014. The applicant also said that another of the reports is in reference to one of his relatives who had similar issues with the TTP. In respect to the news articles, the Tribunal accepts that they are an indication of the extortion behaviour and criminality of the TTP.   

2. In a follow up event, the first Applicant claimed that in March 2015, the second Applicant and their children were followed on their way to school. Fearing that they were not safe, the Applicants and the family left [Location 1]. When consideration is given to that claim, and it is weighed against the other validated evidence, the Tribunal accepts that his fears are well-founded in respect to this event.  

3. The first applicant explained that he and his family vacated their house and for almost 10 months, they lived at a number of different places, including in Islamabad, Karachi, [City] and Rawalpindi. He also said that during this time, he received several threatening phone calls suggesting that he and his family will be killed.

4. In Karachi, he and his family stayed for a period of time with a friend. They only left that place after discovering that their safety and that of their host was believed to have been compromised. The first Applicant said that they stayed in [Mr A]’s house in Islamabad. This was organised by one of his influential contacts. He also had a friend who was [an Occupation] who lived is Islamabad, and he stayed at his house. The family then moved to [City] where they stayed with friends until they travelled to Australia. The first Applicant said that throughout all those many months, he continued to receive regular threatening phone calls, which he estimated was about 16 or 17 threatening calls.

5. Having considered the claims made by the first Applicant and evidence he relied upon, the Tribunal accepts that the Applicants would have had a well-founded fear for their safety in Pakistan which necessitated in them relocating to the various residences described above.  

6. The first Applicant said that for the safety of his family, in September 2015 he travelled to [Country] to visit his sister. He was hoping that he could permanently relocate his family to [Country], however he discovered that the [Country] visa processing would be protracted. He then decided to bring his family to Australia with a plan to seek asylum.

7. He applied twice in 2015 for visas to travel to Australia. When the first application was rejected, he approached a distant relative, [Mr B] who was the [Job title] for [Employer]. His second application for visa was successful.[28]    

   [28]Visitor visa granted to the applicants on 6 January 2016.

8. It was around this time that he met [Ms C] and her husband, [Mr D]. At that time, the first Applicant and his family were in hiding from the TTP at his cousin’s house. It was there that he met [Ms C] and her husband. She told him that she worked in [a Specified job role].

9. She knew that he had been a victim of a failed kidnap and the extortion attempts and that he was in hiding at his cousin’s house. She told him that he should go to Australia, and because she worked in [a Specified job role], she would help him get asylum in Australia. She told him that to secure her help, there was a bond of $10,000 he had to pay.  He claimed that he gave her the money. That payment was not to assist with his visitor visa application, but it related to his later protection visa application. He was told that if his protection visa application was not successful, she would repay him the $10,000 bond. 

10. When asked why he did not apply for asylum when he was in Pakistan, or even enlist [Mr B]’s help him get asylum in Australia, the first Applicant said that he was not aware that he could apply for protection visas when he was in Pakistan and [Mr B] had no knowledge about applying for asylum. 

11. The first Applicant went on to explain further details about [Ms C] and her husband, and it appears from his description that although her husband was involved, the first Applicant’s association and dealing with them was undertaken with [Ms C], not her husband.

12. The first and second Applicants, along with five of their children arrived in Australia [in] February 2016.  Their application for protection visas was not made until 11 May 2016. That delay in making the application is addressed in greater detail later in these reasons.

13. After arriving in Australia, the first Applicant became aware that [Ms C] and her husband were already in Australia. He met with them after he had arrived in Brisbane. He claims that [Ms C] and her husband told him not to immediately apply for a protection visa, but rather wait until their visitor visas were about to expire before making the application. He followed their advice. The first Applicant further claimed that [Ms C] told him that to ensure greater success in getting a protection visa, he would have had to show the Department that he was prepared to be industrious in Australia, such as operating a business. They convinced him to invest in a [Business 1] and was told that it would cost $20,000. That investment would show that he was a partner in that business and be advantageous to his credibility when applying for protection visas. Because he had accumulated significant financial capital through his businesses in Pakistan, he had to his disposal the money to pay them.  He withdrew the money from his account and paid them $20,000.   

14. The first Applicant claimed that at around that same time, he was also told by [Ms C] and her husband that they could arrange for work visas in Australia. They had a [business] in Australia that needed workers, but it would cost $20,000 if she and her husband were to arrange the work visas. Knowing that his cousin was eager to work in Australia, and to help his cousin, the first Applicant paid the $20,000 to them. The plan was for them to arrange for a work visa for his cousin, however his cousin did not arrive, and no work visa was arranged.

15. The first Applicant outlined to the Tribunal a further occasion in 2017 when [Ms C] and her husband convinced him to provide them with money. By this time, he had applied for a protection visa, but was waiting for a decision by the Department. They told him about a [Business 2] and said that he could be their business partner in this [Business]. His share of the business would cost $20,000.  The first Applicant told the Tribunal that altogether, over the time that he had known them, he had paid [Ms C] and her husband $70,000.  

16. At a subsequent time, the first Applicant complained to the police about being defrauded by [Ms C] and her husband. The Tribunal accepts that he had provided information to the Department about what he said were the fraudulent activities of [Ms C] and her husband.  He also provided copies of bank statements outlining the financial transactions between them. He also provided a copy of a statutory declaration signed by [Ms C] where she said that she would repay the first Applicant a significant of money. 

17. The Tribunal accepts that although possessing a reasonable degree of education, the Applicants were not familiar with matters associated with Australian immigration laws, or the procedures or policies involved. The Tribunal finds that given their immigration status at the time of their interactions with [Ms C] and her husband, the Applicants were placed at a significant disadvantage by their conduct towards him and his family.   

18. The Tribunal accepts, and finds, that the Applicants had a personal financial dispute with [Ms C] and her husband.  That finding includes that they met those people in Pakistan, and he paid them money in anticipation that they would help him obtain asylum onshore in Australia. However, once the Applicants arrived in Australia, that assistance was not provided. Instead, they were deceived, manipulated, and coerced into giving additional amount of money to [Ms C] and her husband. The Tribunal further finds that the first Applicant made a complaint to the police about the fraudulent behaviour of [Ms C] and her husband. The Tribunal is satisfied that the evidence supports that finding.

19. The Applicants claim that they hold a well-founded fear that if they were to return to Pakistan, a real risk exists that they will suffer significant harm or there is a real chance that they would suffer serious harm by [Ms C] and her husband. They also fear that [Ms C] and her husband have maintained dangerous animosity towards the Applicants because of their financial dispute. The Applicants fear that [Ms C] and her husband will use their powerful connections within Pakistan to harm them and their family if they return to Pakistan.

20. Although the Tribunal identifies that there is scant evidence to validate this claim, the Tribunal considers that given the fraudulent and deceptive behaviour of [Ms C] and her husband both in Australia and Pakistan, and that their departure from Australia seemingly occurred upon the Applicants’ complaint to the police, the Tribunal considers that the benefit of doubt should be afforded to the Applicants in regard to this claim. The Tribunal accepts that they hold a well-founded fear of harm at the hands of [Ms C] and her husband should they return to Pakistan.    

    Delay in making application

21. The Applicants explained to the Tribunal that it was their intention that when they arrived in Australia, they would seek protection and apply for the appropriate protection visas. They arrived [in] February 2016 and their application was not lodged with the Department until 11 May 2016. That was a delay of three [months].

22. In respect to any consideration by the Tribunal about the delay between the Applicants’ arrival in Australia and their application for  protection visas, guidance can be found by the judgment in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where it was found that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an Applicants’ fear of persecution.[29] Therefore, the significant delay in the Applicants seeking a protection visa can support an adverse credibility finding as well as a finding that they do not have a well-founded fear of harm. 

    [29]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997. 

23. The first Applicant testified at the Tribunal hearing that he had been influenced by [Ms C]  and her husband, [Mr D]. Their comments and conduct influenced him to delay making the protection visa application. He was told that there was no urgency, and he was encouraged to delay making the application and told that it would be best to wait until their tourist visas were about to expire before lodging the application. When carefully considering the evidence given at the Tribunal hearing by the first Applicant about why there was a delay of three months before the application was lodged, the Tribunal accepts that significant weight can be placed on the veracity of that explanation.

24. In corroboration of his explanations for the delay, his evidence in respect to the involvement, or relationship with [Ms C] and her husband is accepted by the Tribunal.  The Tribunal accepts that the explanation provided by the Applicants for the delay in making their application is genuine and the Tribunal does not consider that their delay in making the application should impact upon the making of any decision in this matter.

    Country information

25. Available to the Tribunal is reliable and credible country information in respect to Pakistan. Contained within the DFAT report is information outlining that in Pakistan, criminal gangs are prevalent, and their activities include drug trafficking, kidnapping, extortion, human trafficking, and child sexual exploitation. Reports suggest that although Islamabad has a lower crime rate than other major cities within Pakistan, this was only due to its large security presence because it is the nation’s capital.[30]

    [30]The DFAT report, Pakistan, dated 25 January 2022, page 16, paragraphs 2.49 – 2.50.

26. Recently, because of the large-scale security operations carried out, there had been an improvement in the reduction of terrorist attacks within Pakistan demonstrated by a six-year downward trend. However, while those security operations have mostly wound down, the security situation in Pakistan has deteriorated.[31] 

    [31]The DFAT Country Information Report, Pakistan, 25 January 2022, page 14.

27. The country information further outlined that the TTP is a well-known and prominent terrorist organisation operating within Pakistan.  The TTP aims to push the Government of Pakistan out of Khyber Pakhtunkwa province and establish Sharia law by waging a terrorist campaign against the Pakistani military and state. TTP uses the tribal belt along the Afghanistan-Pakistan border to train and deploy its operatives, and the group has ties to al-Qa’ida. TTP draws ideological guidance from al-Qa’ida, while elements of al-Qa’ida rely in part on TTP for safe haven in the Pashtun areas along the Afghanistan-Pakistani border. This arrangement has given TTP access to both al-Qa’ida’s global terrorist network and its members’ operational expertise.[32]

    [32]Country Reports on Terrorism 2019, United States of America Department of State, page 301, >

    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’.[33]

    [33]Kidnap for Ransom Insight Report, November 2020, Constellis, 30 November 2020, page 12.

28. The frequency of kidnappings within Pakistan by terrorist groups to procure ransoms has fluctuated. The country information indicates that terrorism financing through kidnapping declined between about 2014 and 2016 after government operations in the federally administered tribal area of Pakistan reduced militant activity as part of Operation Zarb-e-Azb.  However, 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.[34]

    [34]Pakistan Security Assessment 2017, Journal for Conflict and Security Studies, Pakistan Institute for Conflict and Security Studies, pages 64 – 65.

29. Further country information provides 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 nongovernmental organization in South Waziristan district.[35] Prior to that, there were reports of four kidnapping incidents in the Khyber Pakhtunkhwa tribal districts in 2019.[36]

    [35]Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2020, Irfan U Din and Mansur Khan Mahsud, FATA Research Centre, 7 January 2021, page 18.

    [36]Khyber Pakhtunkhwa Tribal Districts Annual Security Report 2019, Irfan U Din and Mansur Khan Mahsud, FATA Research Centre, 13 January 2020, page 13.

30. The DFAT report further provides that armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told the DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists and allowing former terrorists to return to communities or engage in politics. This placed minorities and others at risk.[37]

    [37]The DFAT Country Information Report, Pakistan, 25 January 2022, page 14, paragraph 2.38.

31. It is provided within the DFAT report that the deterioration is attributed to a number of domestic and international issues, including domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan. The Pakistan Institute for Peace Studies (‘PIPS’) has reported that there were 146 terrorist attacks in 2020, killing 220 people and injuring another 547, with a further 97 recorded terrorist attacks from January 2021 to July 2021, which killed 300 people and injured another 765. The TTP and other domestic jihadist groups carried out most of these attacks, and civilians, security forces, vehicles and outposts were targeted along with places of worship, schools, and other buildings.

    FINDINGS – Future risk of harm to the applicant

32. The Tribunal accepts and notes that at the time of the Tribunal’s review hearing, considerable time has passed since the Delegate made the original assessment and decision.  Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of his application as at the date of the review hearing.   In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the Delegate relied upon to reach the original decision.[38]  

    [38]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

33. Earlier in these reasons, the Tribunal arrived at a finding that the Applicants’ claim of having a well-founded fear that if they returned to Pakistan, there exists a real risk that they will suffer significant harm or there is a real chance that they would suffer serious harm by [Ms C] and her husband. There is not a need to repeat the findings as the Tribunal’s reasons for arriving at that position have been well ventilated within these reasons.  

34. Turning to the Applicants’ original claims in respect to having a well-founded fear and the existence of real risk that they will suffer significant harm, or there is a real chance that they would suffer serious harm at the hands of the TTP should they return to Pakistan. The Tribunal has identified within these reasons the Applicants’ claims and evidence, which the Tribunal finds that support those claims. The first Applicant’s explanation and description of the events relating to the attempted kidnapping are in the Tribunal opinion, validated by the evidence contained within the corresponding police report. The Tribunal also finds that his evidence in respect to receiving the threatening letters and telephone calls is credible when weighing it against the other tangible evidence produced. 

35. In conclusion, when carefully assessing the facts, circumstances, features and available evidence, and when weighing all of that against the available country information, the Tribunal finds 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 that they will suffer significant harm, including cruel or inhuman treatment or punishment or degrading treatment or punishment.

36. For those reasons given above, the Tribunal finds that the Applicants meet the definition of refugees as per the criteria set out in the Act.[39]  

    [39]Migration Act 1958 (Cth), s 36(2)(a).

    decision

1. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Act.

   Wayne Pennell
   Senior Member

   
   

   Attachment  -  Extract from Migration Act 1958 (Cth)

   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.

   …