2206622 (Refugee)

2206622 (Refugee) [2024] AATA 2740 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  2206622 & 2206620
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Lilly Mojsin
DATE:7 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 May 2024 at 10:41am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – imputed political opinion and membership of particular social group – daughter/sister and wife/mother of members of secular political party – associations with party leaders – requests and demands for money and threats by individuals, persecution by political rivals, military and paramilitary, and business demolished and land occupied – husband/father died and all other family members left country – single women living alone – mother’s age and physical and mental health – credibility – inconsistent claims and evidence – son/brother’s long residence in Australia and limited profile in home country – multiple return visits by brother/son and occasional visits by applicants – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
COY19 v Minister for Immigration [2020] FCCA 429
COY19 v MICMSMA [2022] FCA 352
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 May 2016 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are daughter [the applicant] and her mother [the second applicant].
The applicants, who claim to be citizens of Pakistan, applied for the visas on 27 March 2015. The applicants made separate application to the Department. The delegate refused to grant the visas to both applicants on the basis that the delegate was not satisfied that the applicants’ fear of persecution was well founded or that there is a real risk the applicants will suffer significant harm.
The applicants appealed the Department decision, attaching a copy of the Department decision, to the review application, submitted to the then Refugee Review Tribunal.
The Tribunal [RRT1][1] differently constituted, affirmed the delegate’s decision, and that decision was affirmed by the Federal Circuit[2] but subsequently set aside by the Federal Court[3].
[1] RRT 1607505 and RRT 1607504
[2] COY19 & Anor v Minister for Immigration & Anor [2020] FCCA 429
[3] COY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 352
The matter is now before the Tribunal [AAT2] pursuant to an order of the Court.
The applicants requested the Tribunal hear these matters in a joint hearing. The Tribunal agreed. The applicants appeared before the Tribunal on 24 November 2023 and again on 28 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the son of the second applicant and brother of the applicant, [Mr A], an Australian citizen.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants was not represented in relation to this review, but [Mr A] assisted them with their application before the Tribunal.
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in her PV application stated that she is an unmarried Urdu speaking Sunni Muslim woman from Karachi, Pakistan. She completed studies at [a College] in [Year]. From 2010 she worked as a Supervisor in a [workplace 1] in Pakistan.
- I have completed up to year 12 in school in Pakistan. I have worked in Pakistan. I travelled to [Country 1].
- I came to Australia [in] March 2015 on a visitor visa.
- My mother and I live in Pakistan alone. We have been facing a lot of problems because my father and brother both were involved in MQM party. My father has now expired. When my father was alive he was able to look after us. Now only my brother supports us and he is [organisation role] of MQM in [City 1]. He is also involved in UK MQM.
- Many people were troubling us. We did change our addresses as well as phone numbers so many times in order to avoid the trouble, but some members from within the party caught us and again trouble us with threats.
- I have threats against my life in Pakistan. I am not safe in Pakistan. I am afraid that I would be killed if and once I have to go back to Pakistan.
- There is no safety in Pakistan as anarchy and restless is on the rise and Pakistan, as a State, does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously. The authorities have no capacity and man power to deal with every complaint such as this.
- I strongly believe that my life is at risk if I return to Pakistan.
Department interview with the applicant 11 August 2015
At a Department interview, held on 11 August 2015, the applicant said that after her father died, her brother was sending them money. Father worked in different places. He had a marriage hall and also worked in [a shop]. He managed the hall. Her father was in the MQM as they went with him to functions.
The applicant started going to functions with him when she was about 8 years old. Her brother was involved. Asked about MQM she said that Altaf Hussain looks after his people. But now things are getting worse. In 1992 or 1990, MQM divided into 2 sects. When Musharraf came in, things got better for MQM but now things are worse for MQM.
Asked if she gave MQM mone,y she said “they were giving us threats for money and saying we need this much money”. They know her father was MQM and her brother is MQM. They came to marriage hall many times. Once or twice they gave them 10,000. Her brother still owns these premises. She stopped going to the marriage hall because of the problems and now someone manages it.
Asked if she supported the MQM political view /philosophy she said that sometimes they are right and sometimes they are wrong. She will go to a protest in [City 2]. Her brother is involved. She did not know what it is about, the date is not confirmed.
In regard to their home in Karachi, they rent the premises. The landlord was living downstairs and they were living upstairs. She did not know if it was rented as her mother does most of the contact with the landlord. She speaks to the landlord about the wedding hall as he manages it, but she has not spoken to him about that.
Her parents lived prior to 2000 in [Suburb 1]. Regarding the problems she had in Pakistan, her brother and father were in MQM. People came asking for money. Her mother developed sugar problems.
In regard to people coming to the door asking for money or donations, the applicant said they have a paper saying how much money they need. They harass them and ask about her brother. They say how much money they need from the [Applicants’] family and if they do not pay they will abuse them, they tell her mother that they will kidnap and kill her. They come in plain clothes. She does not know where they are coming from. Sometime they are MQM, sometimes someone else.. .they are in plain clothes.. .they are mixed. They ask for money in the name of Altaf Hussein. They don’t know but they think they are from Altaf Hussein’s party.
Asked why her brother would associate with MQM if these people are from the same party that is threatening his mother and sister, the applicant responded that they were not getting threats when her father was alive.
The threats started in 2010/11. At that time they were just coming on a few occasions saying “give us this much money”. Now they recognise them and she has to cover herself.
They cannot give them money as they don’t have that much money so when they did not pay them, they came again and again and knocked on the door and abused them. They knew there are two ladies in the home.
She confirmed her brother was an MQM member in [City 1] and [Country 2] but did not know if they send contributions to MQM Pakistan. It was put that if her brother was of any standing in MQM in [City 1], he would be able to use his influence to stop these people coming to the door. She responded that these days, MQM is having trouble in Karachi and her brother is not present there. She also said that “we paid them once or twice when they came to the marriage hall but we haven’t paid them when they came to our home and then they were giving us a threat calls and knocking our door. Neighbours were asking what was happening”.
The delegate put to her that these threats started in 2010 and she paid them twice in the last five years in the marriage hall. She said she did. When they came to the front door she told them they had already been paid at the marriage hall and it’s the same whether they pay there or at home.
They started coming again 14 days later. Sometimes she was not going out because they were mistreating them. Sometimes they were threatening them.. .”we will kill your brother ..we will kidnap you”. Her mother was stressed and sick. Her brother came to see them and he stayed 20 days. But because his life was threatened, he did not come to their house he stayed at his friend’s house and they met him there. There are so many problems going on in Karachi. This was in 2013 and her brother stayed 15 days. Sometimes he stayed for one month and he always stayed with friends.
She thinks that the money was paid in the marriage hall by the manager in 2010 or 2011.She asked him to pay them. They were approached once a week.. .sometimes 15 days, since 2010/11 these people have approached them once a week or two weeks. By end of 2013 it increased. In 2013 sometimes they come three times in 15 days, sometimes in a week. When her mother is at home she does not open the door.
At the front door they haven’t paid them yet. If they are coming they come in the name of Altaf Hussein. “We don’t know whether they are from the party or not. They are in plain dress”.
The applicant said she did not report this extortion to the police as she was scared they would get in trouble.. .police is not in power there.. .they can’t do anything.
Second applicant’s PV application
The second applicant stated she is an Urdu speaking widowed woman, who was born in [Country 3] to Pakistani parents. She has two children, a son who is an Australian citizen and a daughter, a Pakistani citizen, who is residing in Australia. She arrived in Australia [in] March 2015 as the holder of a Visitor visa. She previously holidayed in the [Country 1]. Her statement was identical with the applicant’s statement.
They live alone in Pakistan. They have faced many problems because their father and brother were both involved in the Muttahida Quami Movement (MQM). The father is deceased but when he was alive he was able to look after them. Now they only have the support of their brother/son who is [organisational role] of MQM in [City 1]. He is also involved in UK MQM.
Department interview with the second applicant 11 August 2015
At a Department interview, held on 11 August 2015, it was put to the second applicant that her son had been living in Australia since [Year] so it was unlikely anyone would be interested in him. The applicant stated that they have a fear of living alone and there are different people other than MQM and Haqiqi[4] who they fear.
[4] Mohajir Qaumi Movement Pakistan also known as Mohajir Qaumi Movement (Haqiqi). See: Mohajir Qaumi Movement Pakistan -
The second applicant was asked why it had been all right to reside with her daughter for the past 10 or 11 years but suddenly it is not. The applicant responded that the situation is bad and people are asking for money as they know they have the hall.
Submission by applicants 27 February 2019 - RRT1
It was submitted that the applicants fear persecution in Pakistan due to their family’s strong involvement with MQM . They fear returning to Pakistan due to their past experiences of threats being made to their lives, harassment and extortion demands and due to the prevailing conditions that threaten MQM members, its supporters and workers.
The second applicant claims that she was persecuted continuously from about 2010 to 2015 because of her family’s political affiliations with MQM. Her husband was a prominent activist of the MQM, working as [an organisational role] of [Suburb 1]. Her son has been an active member of MQM Australia and was [an organisational role] in [City 1] from 2012-2016. He also belongs to the London based Altaf group. Her [relative] (Saleem Shahzad) was one of the five founding leaders of MQM. She has health conditions that made her more vulnerable and often had panic attacks in anticipation of the return of the groups threatening her and her daughter.
The applicant’s claims are similar to the second applicant. She openly worked for the MQM in Karachi though she was not a member of the party. She has been a member of MQM in Australia since 2015.
The applicants’ marriage hall named “[Business name]” was destroyed in 2018, believed to be by paramilitary Rangers. Their family’s plot of land in Karachi was forcibly occupied by unknown people believed to be instigated by political rivalry in 2018. The R and their lands forcibly occupied and they have no means of living in Karachi. They are too fearful to even go to Karachi to inspect the damage and chase away the occupiers of the land.
Their brother/son has not been in Pakistan for the last five years because he fears he could be attacked and harmed. They are persecuted by political rivals and by military and paramilitary groups such as Rangers. The MQM’s members, activists and their families are often persecuted, in the power dynamics of Karachi and elsewhere. Its leadership is forced into exile due to the harassment and assassination plots levelled against them. It is reported that many party faithfuls have been killed by extra judicial methods and/or subjected to intense military crackdown.
Documents provided to RRT1 on behalf of both applicants
·     Written submissions from [Mr B] of [Lawyers] dated 27 February 2019
·     Letter from [Mr C], [Organisational role], MQM Australia Unit in relation to the applicant dated 2 August 2017
·     Letter from [Mr C], [Organisational role], MQM Australia Unit in relation to [Mr A] dated 7 July 2017
·     Photographs showing the destroyed and demolished ‘[Business name]’ marriage hall (undated)
·     A news item on Saleem Shahzad (not provided but stated it was provided) but link provided ‘Former MQM Leader Salim Shahzad arrested’
·     Three photographs relating to the above article ‘Former MQM Leader Salim Shahzad arrested’
·     Recent news items on atrocities committed on MQM and its membership
·     Passport of the second applicant (Expiry [2029])
·     Passport of [Mr A] (Expiry [2019])
·     Passport of the applicant (Expiry [2023])
·     [Country 2] Grant of Asylum for [Ms D] dated [March] 2004
·     Passport of [Ms D] (Expiry [2027])
·     Photographs of applicants
·     [Country 4] Driver’s license of [Mr E] (Expiry [2025])
·     Order of the Immigration Court, [Country 4] – [Mr E], decision entered [July] 2014
·     Medical Discharge [Mr A] dated 30 May 2019
·     A family photo claimed to be with Saleem Shahzad;
·     Photos of the deceased Saleem Shahzad.
T1 Hearings held on 5 April 2019 and 3 May 2019
I have listened to tapes of the hearings and I am satisfied that the below summary made by RRT1 represents an accurate summary of those hearings.
The applicant is a single, Sunni Urdu woman from Karachi Pakistan. She visited Australia twice before her most recent arrival in 2015 and on all occasions she entered the country on a visitor visa. Prior to her most recent arrival she was refused a visitor visa.
Her brother owned a marriage hall in Karachi and they also had some land which has now been occupied by another person who has illegally built a house on it. The marriage hall has since been destroyed. Prior to departing Pakistan she lived with her mother in their own home in [Karachi]. The ground floor of their house was occupied by a person who managed their marriage hall business. Currently, he is no longer living there and their house is unoccupied. She claimed to be unaware of the current state of their house despite knowing it had been broken into at the time the marriage hall was destroyed.
She does not have any close family in Pakistan. Her aunts and uncles are all residing overseas. Her father died in 2004.
She holds a Bachelors Degree in [Subject]. In Karachi she managed a [workplace 1] for 5-6 years. Sometimes she had periods of time away from work due to her mother’s health and because of political unrest. She nevertheless remained in the position until she departed Pakistan. In Australia she is working as [an occupation 2] in a [workplace 2].
In Pakistan, she and her mother relied on her salary, income from the marriage hall and some financial support which they received from her brother. Her brother came to Australia more than 25 years ago. He sought asylum but in the end was granted a different type of permanent visa.
She and her mother left Pakistan because her father and brother were involved with the MQM and she and her mother were receiving threats because of that. There are 2-3 different groupings in MQM and her family belonged to the MQM London [MQM-L] group (or Altaf Hussain group). In the years before they departed Pakistan different people came to their house to demand money from them. She is not sure if they were from their own party or a different party. Sometimes people in Rangers uniforms came to demand money and sometimes people in plain dress. Sometimes she felt the people were from her own party. Sometimes they harassed her and snatched her scarf. There was nobody in Pakistan to provide them with protection.
RRT1 put to the applicant that she previously told the delegate that it was people from their own party who asked them for money and that she had not previously claimed that it was Rangers demanding money from them. She replied that she told the delegate that it was different groups of people who asked them for money.
The demands for money commenced in 2010 and in the beginning it was not that frequent. After one or two years they came more frequently – once or twice a week or once a fortnight. The people asked questions about her brother and asked them for money. They told her mother that they would harm her daughter. She said that on occasions, she and her mother went to stay with her brothers friends for a couple of days for some respite. She said she and her mother did think about moving elsewhere but she herself had some small dealings with the MQM and attended their functions and so she was also known in Karachi. She said nobody would have agreed to rent them a property because they are known to be associated with MQM. While working, she used a fixed driver and when the situation got worse she started covering herself up.
She never paid money to the people who came to her door but the manager of the marriage hall sometimes paid money on their behalf. She said he paid them amounts of about 10,000 on 5-6 occasions.
When asked what happened when she failed to comply with their demands made at her door she said that they sometimes pushed her and snatched her scarf. Once she said they pulled her hair but they were always threatening to kill her. She said she was scared they would ‘dishonour’ her. She said her mother never opened the door to them if she wasn’t home.

Once she said they lodged an FIR with the police but no action was taken. Her brother talked to the London party but nothing came of that either.
As to her family’s MQM connections, she said her family were involved with the MQM-L group and her maternal [relative] was the right hand man of Altaf Hussain. Her [relative] went back to Pakistan 4 years ago and was arrested. Her brother was once in charge of MQM [in City 1]. She said that she was personally involved with the MQM in Karachi. She clarified that she worked on women’s affairs including attending functions and participating in small activities. She said that when her father was alive she went along to speeches with him. In Australia, she said there is a sector office in [Cities 1 and 2]] and if the [City 2] office is working for women she goes there and participates in their events. She said she has been to [City 2] four times and once went to a protest in [City 3]. She said her mother has played no particular role in the MQM but when in Pakistan she sometimes went to speeches with them.
As to her family’s commitment to the MQM, she said that they supported Altaf Hussain from the beginning, but over the years the party has been damaged and has become divided. She said they do not vote for Altaf Hussain but they continue to support charity work of the MQM.
Regarding the demolition of the marriage hall she said it occurred in 2018 when Rangers broke up the property using a tractor. She said her brother had a lease on the property but was given no notice that this would happen. She said her brother appealed to the MQM people in London for assistance but has received no support.
She fears returning to Pakistan because her life could be threatened by MQM members (not the London group) and the Rangers. They will be continually harassed and threatened and she could be ‘dishonoured’. They know about her brother’s ongoing role with MQM-L and it is possible they could be arrested at the airport.
As to whether she fears harm in Pakistan as a single woman, she said that she fears the MQM and the Rangers. She said that ordinarily people will not touch or harass you on the street. What happened in the past is due to the problems she had with the MQM and the Rangers. Another problem she has is that her mother is ill and she has no-one to help her in Pakistan to take care of her.
The second applicant repeatedly claimed not to know much about the situation she and her daughter faced in Pakistan. Largely, she deferred to the evidence of her daughter and son. She said she is scared of returning because she is living alone there with her daughter. She repeated the evidence that she and her daughter were harassed for money in their home and she said that she is scared her daughter will be ‘dishonoured’ by such persons if they return. She said she does not know who the people were but said they were not from the MQM. She said she does not remember how long it went on for. She also stated that she does not know why they were being targeted in this way.
The second applicant said that they don’t have any rights as women in Pakistan. They experienced nothing more than the harassment they have claimed. She repeated her claim that they are alone there and that she is worried about her daughter’s safety.
As to her family’s involvement with the MQM she said her husband and son were actively involved in the party. She said she does not know whether her daughter was involved because she doesn’t tell her much.
As to the circumstances surrounding the demolition of the marriage hall she claimed not to know when it happened, who did it or why. When asked what has become of her home she said that it was also broken into at the same time and items were taken away. The applicant confirmed that she has no family remaining in Pakistan as her [brothers and sisters] all moved overseas for similar reasons to her and her daughter.
[Mr A], the brother/son, gave evidence to T1. He said that he is associated with the MQM London group. Previously he was [an organisational position] of the MQM unit in [City 1] but not presently. He said that the London group has been marginalised and is not operational in Pakistan. The organisation is divided and whoever supports the London group faces problems. He said the Rangers are trying to destroy the Altaf Hussain faction.
He is well known for his support in Pakistan and this is the reason his mother and sister have been targeted. As to his family home in Pakistan he said he heard from his friend that it has suffered a little bit of damage. He said the manager of the marriage hall, who formerly lived there, has run away because he is scared of the Rangers. When asked if he has any proof to support that it was the Rangers who demolished the marriage hall he said he would enquire about that.
As to any recent involvement with MQM he said that he returned to Pakistan about 5 or 6 years ago and he visited the Nine Zero Headquarters of MQM in Karachi. He said he spoke about MQM’s activities in Australia and invited members to visit Australia. When asked if his visit captured any media attention he said no.
When asked what support he provides the MQM he said that he attends protests in Australia over the mistreatment of his party in Pakistan. He said he makes some small donations of about $50 per month to the party. If asked to go to [City 3] for events he goes. He said he has also attended 2 or 3 meetings in [Country 2].
Post Hearing Submission to RRT1 15 May 2019
The applicant submitted that she risks serious harm, both psychological and physical and possibly death at the hands of strangers who have been bothering her and her mother. Since her departure their house has been damaged, the marriage hall levelled to the ground. Such threats will continue to happen in the future and she feels unsafe as a woman, with no family and support networks to look after her welfare and security in Pakistan. Her mother is elderly and has health complications and her other relatives have fled the country. They were granted protection in other countries due to the accelerating threat levelled against their faction of the MQM.
There are three factions of the MQM party, namely the Altaf group or the London group, PSP and Karachi MQM. The latter two groups have the backing of the current government while the Altaf group is banned. The government wants to curb the power of the Altaf group due to its popular support. The government is trying to achieve this through PSP and MQM Karachi groups who are acting against the Altaf group and its membership.
The applicant accepts that neither she nor her mother is well-known in the community. However, her brother, her [relative] and her father are well known Altaf group supporters. Their profiles impact on her and her mother.
Relocation is not an option for the applicant and her mother. Different cities have different dialects and names and therefore it not hard to identify them. Security, employment and suitable accommodation would be difficult. There are also safety concerns because of her family’s significant links with the Altaf group which is banned in Pakistan.
The second applicant submits that she answered ‘I don’t know’ to the question asked by the Tribunal about her whether her daughter works for the MQM because her son and daughter do not disclose details of their involvement with the MQM with her. This is because she gets panic attacks and they avoid discussing sensitive issues with her. She knows about her daughter’s allegiance to the Altaf group but is not aware of the extent to which she is involved at present.
The applicants reiterated that they are persecuted for their political beliefs. That is, they are targeted for their family’s strong links to the Altaf group of the MQM which is a banned political party in Pakistan. A distinction should be made between the Altaf group and other factions of the MQM.
On 3 June 2019 the applicants provided a link to a news item on Saleem Shahzad and a copy of a medical certificate in respect of a hospital admission by their brother/son for a [physical] condition.
On 4 June 2019 they provided an Urdu message which reportedly reads “[Message from Altaf Hussain about Mr A]”. Also attached is a discharge letter of [Mr A] from hospital, a family photo with Saleem Shahzad and photos of the deceased Saleem Shahzad.
Documents provided to AAT2, on behalf of both applicants 23 October 2023
·     Letter of support from [Mr F] [Organisational role] Muttahida Quamin Movement dated 3 October 2022 details of MQM-L activists
·     Letter of support by [Ms G] dated 12 October 2023
·     Statutory declaration of [Mr H] dated 12 October 2023
·     Statutory declaration of [Mr C] dated 13 October 2023
·     Photos of [the first applicant] claimed to be taken at an MQM event in [City 2] in September 2023
·     CNN Article titled 'Pakistan-American man sentenced to death for beheading a diplomat's daughter' 24 February 2022
·     The Express Tribune article titled 'Sharp rise in violence against women' 20 October 2022
·     Article titled 'Violence-against-women in Pakistan' by Baseer Naveed
·     Women Rights Pakistan Amnesty Report
Documents Provided to Tribunal [AAT2] on 18 October 2023
·     Amnesty International Report ‘Human Rights Crisis in Karachi’ dated 1 February 1996
·     The News International article titled ‘Civil society demands thorough investigation into Dr Hasan Zafar Arif death’ 17 January 2018
·     The Express Tribune article titled ‘Fire erupts at MQM's former headquarters Nine Zero’ 9 September 2022
·     United Nations Human Rights Mandate dated 10 March 2017
·     UN Committee against Torture findings regarding Aftab Ahmad 7 July 2017
·     The Print article ‘MQM UK stages protest at 10 Dowling Street against extra judicial killings in Pakistan’ dated 2 October 2022
·     Change.org Petition
·     Dawn article ‘MQM-L supporter goes missing on way back home in Latifabad’ 18 June 2020
·     BBC article ‘Pakistan police arrest two for murder of Raza Haider’ 18 August 2010
·     BBC article ‘Pakistan politician Manzar Imam shot dead in Karachi’ 17 January 2013
·     BBC News article ‘ Pakistani politician Syed Ali Raza Abidi shot dead’ 26 December 2018
·     Unidentified sourced article ‘Tortured body of MQM-L leader Hasan Zafar Arif found in Karachi’ 14 January 2018
Letter of support from [Mr A] dated 13 August 2023
·   Our family went through a life-threatening and traumatic situation on 19 June 1992 when the Pakistani establishment started operations against the Urdu- speaking people of MQM which was the third-largest political party in Pakistan. Since then, more than 15000 MQM workers extra-judicially killed by the forces and other extremist elements in Pakistan. The main reason for our family to go through that unlawful operation was that my [relative] Saleem Shahzad was the co- founder of MQM and was a member of the National Assembly of a political party MQM in Pakistan, we were all targeted by the Pakistani establishment with a life- threatening situation that forced us to leave Pakistan to save our lives.
·   I joined Muttahida Quami Movement (MQM) in 2012 as a political worker and [organisational role] of NSW which is the third largest political party in Pakistan and represents “Muhajirs” the Urdu-speaking, who migrated to Pakistan when the country was created after the independence of British India in 1947. MQM is founded by Mr Altaf Hussain who is living in exile for 30 years in the United Kingdom.
·   The reason I joined MQM is because of their vision, standing for the rights of the Urdu-Speaking people in Karachi. I would like also to like highlight that my [relative] Saleem Shahzad was a co-founder of MQM, and I was influenced by their hard work and dedication to the nation’s betterment and stand against unlawful treatment by the state
·   Due to my dedicated political work, and profession and being close to the party’s co- founder “Saleem Shahzad”, I worked very closely with the founder & leader of MQM Altaf Hussain and with the high-ranking command personnel in MQM (reference letter and several memorable pictures are attached below). I was in-charge of the New South Wales international working unit and initially assisted the party in managing day-to-day activities in the region including workers' gatherings, arranging meetings, political programs and other political activities campaigns and spreading awareness of human rights violations in Karachi against Urdu-Speaking people after joining the party in 2012.
·   After 2016, the situation got more worst for MQM workers and their families after a telephonic speech incident by Mr Altaf Hussain, that incident broke MQM into different groups i.e. MQM-London, MQM-Pakistan. The Pakistani establishment started a crackdown against MQM-London and International Units and repeated the same 1992-style unlawful operation against MQM-London and International Units (United Nations Report attached as proof). As I have been working from Australia, I was considered as MQM international units’ worker. One of the proofs to share with you, my [relative] Saleem Shahzad travelled to Pakistan in 2017 and got arrested at the airport for fake cases against him. Being a cancer patient, he was kept in jail for 6 months without any treatment which caused his death due to no medication being provided deliberately.
·   MQM is the only secular political party that has been vocal against this menace of religious extremism and Taliban. As a result, MQM International units workers and their families have been killed, harassed and threatened by these elements that have deep support within the government.
·   I like to bring to your attention that more than 4000 MQM Political Workers and their family members are missing (United Nations and Amnesty International report is attached below). They have been picked up from their homes and their offices in broad daylight during unauthorized and illegal raids without any warrants by the Pakistani Forces and they are, if not killed, being held in undisclosed locations without access to any legal help.
·   If my mother [the second applicant] and [the first applicant] have to live in Pakistan, there is the same life-threatening fear for them as 4000 MQM workers’ families facing right now.
Plea To Recover 4000 Missing Political Workers From Karachi
Missing persons’ case: MQM submits a list of 171 workers
·   As I have been working very closely with the Founder & Leader Mr Altaf Hussain, I have been threatened by the Pakistani establishment and other religious elements due to my closeness with the MQM international units and also a danger to my family.
·   Under the above circumstances explained, I am certain that if [the applicants] return to Pakistan their life and liberty would continue to remain in danger due to the sibling of [Mr A]. They would most likely be rounded up which could, according to the available evidence, lead to torture or possible death in custody.
Submission Received 23 November 2023
·Medical Certificate from [Medical Centre] dated 21 November 2023 certifying that the applicant suffers anxiety and panic attacks, PCOS and hormonal imbalance. She is on medication.
Tribunal hearing [AAT2-1] held on 24 November 2023
At the Tribunal hearing AAT2-1, the second applicant gave evidence to the Tribunal. She provided her passport and when put to her that she travelled to Pakistan on [date] March 2023 and exited [date] March 2023, she told the Tribunal that she went to [Country 1] but then she conceded that she went to Karachi. Questioned about her house, she said that her son took her to Pakistan to sell the house, but she stayed with her son’s friend whilst in Pakistan. She said she was very scared and her son knows all about it. Her house was destroyed and everything was broken. Her house needed work done before it was sold, so she went to Pakistan as she needed to sign the papers. She did not go to see the Solicitor, her son brought the papers to her.
When asked about whether or not they had other property, she said that it is the only property they have left, everything else is gone.
The second applicant said that she never worked in Pakistan when she lived there. Her daughter worked in Karachi initially. She used to accompany her daughter, as she worked for MQM. I put to the second applicant that her daughter worked in a [workplace 1] and she responded that she forgets things now, even her name sometimes. I put to the second applicant that I had difficulty accepting her memory loss because she could remember her daughter working for MQM.
The second applicant then stated her daughter worked in the [workplace 1] and informed the Tribunal that her hands were shivering and she was very scared from Pakistan. When put she was able to travel to Pakistan, she responded that her son travelled with her.
I put to the second applicant that she had travelled alone, as her son left Australia before her. She said the reason she went to [Country 1] was because there was a wedding and she went for 2 or 3 days and then travelled to Pakistan. She said she was very scared. I put to her that her son departed Australia [in] February 2023 and she left [in] March 2023. She responded that I should ask her son, she does not know.
I put to the second applicant that she travelled in and out of Karachi airport with a renewed passport issued in her own name. I asked her why she fears going back to Pakistan as her son has been in an out of Pakistan many times. She said that they give them a very hard time and different people come knock and check to see who is there. I put to her that she did not have to answer the door. She said they used to throw stones and if you go out they follow you and scare you. I asked her why they would do that and she said there are other people who used to come and they are army people. I asked if the army knocked on everyone’s door and she said she did not leave the home and she does not know who is outside.
The second applicant said that she had nothing to do with her son’s wedding business. There was some manager taking care of it. The manager used to live there and he would come and look around and see and go back. The house was originally owned by her husband and left to her under his will.
I asked her when MQM split into factions and she responded that her husband was a member of the MQM prior to his death in [2004] and that was before the party split into 2 factions. The family have always lived in Karachi as they did not have money to go elsewhere. She said she does not know much about their wedding business.
Discussing her health, I put to her that when she travelled via [Country 5] to Pakistan, she was well enough to travel. She said that she travelled with somebody and she was very nervous. She became unconscious and they had to splash water on her. Asked what medication she takes, she said she did not know but she takes medication for blood pressure, diabetes and cholesterol. She gets heart palpitations. She has siblings overseas, her sisters and brothers all live in [Countries 1, 2 and 4], maybe [Country 6]. They left Pakistan, she cannot recollect when.
I asked if she remembered when her daughter came to Australia. I suggested it was in 2005 and 2006 but she said she does not remember. I put to her that she stayed on her own when her daughter came twice to Australia. She said she could not remember.
I asked if they had any other land in Pakistan and she said they did not have anything.
She said she used to accompany her daughter to MQM activities. When asked what her daughter did there, she said that she does not know the details, she did paper works or other things. She referred to going to processions with her husband. She claimed no personal involvement in MQM activities although she said she sometimes went along to listen to MQM speeches when her husband was alive.
I put to the second applicant that nothing happened to her and her daughter in Pakistan and she said that she had the fear. That is why she developed diabetes and blood pressure. I put to her that perhaps these illness may be age related. She said it was because there was no man in the house and they were vulnerable.

She is not participating in any MQM related activities in Australia but has recently attended an MQM dinner. She renewed her passport without any problems. She said that she had fear in Pakistan because she used to accompany her daughter and she was scared. I put to her that nothing happened to her and her daughter. She said the fear was there and for that reason she has diabetes and blood pressure. There was no man in the house and ladies become more vulnerable.
The applicant gave evidence to the Tribunal and said that she worked at the front desk of a [workplace 1]. She had tertiary qualifications. She worked from 2009 until she came to Australia but then said there were some problems as the party people were coming to the home. She changed from full time to part time work and then her mother was not well. She started working part-time in most probably 2013 or 2014 and then she stopped working completely, she does not remember exactly when, it was 2014.
I asked what happened to her job and she said that she gradually worked reduced hours and then just finished, she stopped going. There is no such thing as resigning as she had issues and her mother was sick. MQM people were chasing her. She had problems, the party people were coming at home, and leaving home was a problem.
I asked how she got to work and she said that she sometimes got a rickshaw or vans. I put to her that they were safe enough to travel on, so that she was not harmed by special people. She said she used to cover herself and reduced her working hours.
I put to her that a reference she had provided to the Department in her visitor visa application from [Employer] stated that she worked for them and was granted a month’s leave from 20 February to 25 March 2015. She said that when the problems happened she started going 2 days and gradually reduced her attendance.
She said that she works now as [an occupation 2] full time. Her brother is not working and he takes care of their mother. He is married and his wife does not work. I asked how he can afford to travel overseas and she said that he sometimes used to work on part-time basis but recently had [surgery] 2 years ago and developed health issues.
I asked her when their relatives left Pakistan and she said that she does not remember but when the situation was bad, they left and got asylum.
I asked who looked after her mother when she travelled to Australia, twice, in 2005 and 2006 and she said that her father was still there in 2004 and in 2005 one of her mother’s sisters in [Country 1] was there and things were not too bad and things were ok. Then after that, MQM split up into various factions and problems began with MQM.
The applicant said her brother’s friend looked after her mother when she travelled in March because the plan was to attend a marriage in [Country 1]. The house they had to sell was causing problems and her mother had to go to Pakistan. The house was sold and she does not know what happened to the money, her brother knows.
I asked about a block of land and she said no, there is nothing.
I put to the applicant that she never worked in the wedding business. She said there was a manager and the business was owned by her brother. I put her brother returned to Pakistan every year and nothing ever happened to her brother when he returned to Pakistan. She said he used to stay at his friend’s place and whatever the purpose of the trip was, he would get that done quickly and then just come back.
I put that in 2016, 2017 and 2018 the Sindh Building Corporation and the authorities were pulling down and removing a lot of the marriage halls. She said she knows very little, she was in Australia and everything she knows about the marriage halls was because of what her brother told her.

100. I put to the applicant that she told the T1 that she was not a member of MQM. She said she used to go there when she was still young with her father. After that in 2009 or 2010 she used to go there and do some work for the women’s wing, small tasks that had to be done. She arranged small parties for ladies or when Altaf was delivering speech, she made the arrangements and collected money. I put to her that nothing happened to her for those activities. I put that at that time, the MQM was not split and the MQM was highly organised in Karachi, having been the predominant political force in the city for decades, and had been an important partner in coalition governments at provincial and federal levels. When she came to Australia they had not split. She said they started earlier than that.
101. The applicant said that their problems started in 2010 or 2011 and different people were coming, she is not sure if they were from the rangers or other factions of MQM. They wanted money and then asked for her brother and said they will kill her. Twice or thrice they did not treat her well and would scare her mother and threatened to rape her. I put they never gave any money. She said they were coming so frequently and they gave money through their manager. They used to take advantage and said they will harm the daughter. I asked if she reported this to the police. She said that these things are happening and they are scared to go to police. I put that she still went to work. She said she had to cover herself and was very cautious travelling to work and she was always scared someone will harm her.
102. They were coming for money and asking for her brother. I asked why they would be asking for him as he travelled in and out of Pakistan 2009, 2010, 2011, 2012, 2013, 2014, it was every year. I put that if anybody was interested and if he was so important that people were coming and knocking on her door every week looking for him and demanding money from her, they could have easily found him. She said that he never goes to their house and because they are aware of the house, he goes and stays for a short duration with different friends every time.
103. I put to the applicant that she claims that two ladies living together in a house in Karachi on their own are continuously being badgered by people and she goes out to work using a public Jeep, comes back home, her brother keeps returning annually to Pakistan without any fear of harm and nothing happens to him. I asked her why anybody is interested in her. She said her brother never stayed with them, he used to just visit, see his mother and go back to where he was staying.
104. I put to the applicant that her brother owns the wedding hall business and all one had to do was wait for him there. She said that their lives are under threat there. I put she did not tell T1 her brother travelled in and out of Pakistan nearly every year. She said her brother never stayed with them and used to visit and see his mother.
105. I asked her to confirm she was not a member of MQM and she responded that she was active. I put to her that the MQM letter provided to AAT2, dated 3 October 2022, stated she joined the MQM in 2010 in Pakistan. She responded she did join MQM, that’s why she was working in that women’s wing. I put to the applicant that the letter also stated that she became close to the founder Altaf Hussein, but she did not tell RRT1 or the Department that she was close to the founder, Altaf Hussein. She said that when he was going to deliver the speech she used to talk to him and also whatever directions he would give, she would take those directions from him.
106. I put to her that MQM split in 2016 and that is when they formed the London group. She said it was going on earlier but it was officially.
107. I asked about attending a function of MQM in Australia and she said it was in [City 2] 2 or 3 months ago. They attended the function and she helped them a bit. She helped to set up the function, and it was Altaf’s birthday. At the moment the party is banned. I put no photos of them were published publicly even though MQM has a [Social media] page. She said there was a cameraman there who took photos. She said it can be confirmed from that person, the unit in charge.
108. I asked why anyone would know they attended MQM functions in Australia as the photos were not published on [Social media]. She responded that the Pakistani authorities know she is involved in Australia as if one person has problems, they target the whole family. She said photos only published of those know but everyone knows the whole family is involved. I confirmed she was claiming because her father, their relative overseas and her brother are known to the Pakistani authorities as being MQM supporters, that the whole family is being targeted. I put that if the whole family were targeted, [Mr A] and her mother entered Pakistan and returned without problem. She said they were there for a short period. She said whatever happened during that time they are the ones and once you start living there, then the problems gradually start again. She said she does not know anything. She said she was suffering and people came and harmed her. She has no rights there. She is stressed all the time, she is not married and as she is 40 no-one is going to marry her now. Her mother is [Age] and they will be killed on their return. She will be raped.
109. I asked what she fears on her return and she said that they are going to harm her. They are only two ladies and they can harm them, they can do whatever they want and they do not have any other family member to protect them. When they were there, people stopped even seeing them, they didn’t want any problems, but their families were keeping in contact with them.
110. I put to the applicant that she told the previous Tribunal that the MQM came demanding money from them so why would they be coming and harassing her in her home when she was there helping them. She responded that “they come, and you know … they threaten my mother that we will harm your daughter ... we do this, we do that and they don’t understand these thing and this is … the most important thing is self respect for our person”.
111. I asked again why, if they were MQM people, would they come and try and get money from them and hassle them when she was already helping them and she was so close to Altaf. She responded that they never figured out which group these people were from, either from the rangers, or sometime they used the other broken group of Altaf Hussein, so it’s very difficult to figure out who are these people. They used to come unannounced and bang the door and sometime they would come on a weekly basis and then sometime more often … it just varied from time to time. I asked if these people were pursuing her so intensely, why they did not turn up at her work place. She said that they came once. I put to her that she had not advised the previous Tribunal or the Department . She responded that she was not working full-time in those days when they came. I put that she still went out on public transport. She responded it was not a public van, it was a private van, she pre-booked.
112. I put to the applicant that it is difficult for women to travel around in Karachi on their own … and now, this year, the Karachi Government authorities have introduced ‘pink vans’ and ‘pink buses’ and these are exclusively for women to travel around safely so that she would be able, when she returned to Pakistan, to get around safely by using the services of these pink vans and pink buses. The independent evidence indicates that a lot of women in Pakistan suffer from domestic violence and that there is now new legislation and the Pakistani authorities are intent on improving the situation for women suffering from domestic violence … and if women are being attacked or harmed there is greater security now for them than previously. She responded that they don’t have a domestic problem but a party issue and that is much wider.
113. I put to her that MQM London is literally an ineffective force now. I put that she had told the previous Tribunal that she wouldn’t vote for them, if she returned there. The independent evidence indicates that there is only MQM-P in Pakistan and they didn’t even put their hands up that they were going to take part in the election that was supposed to happen earlier this year. Most importantly, her brother, who she has claimed before to the Department and the Tribunal as being the person actively involved in MQM-L, he has been back to Pakistan a few times and nothing happened to him. She responded that she has explained where he went he stayed for a very short period. I put that these countries have security checks and if people are of interest to them, they’re able to locate them quickly. She responded that over there, there are different groups ,for example, in MQM, they will come and harm you or kill you and nobody will notice or know about that.
114. I put that they are able to get healthcare in Pakistan, if needed. She said there is no such thing. I put that healthcare is provided by a mix a public and private hospitals, clinics and GP services. She did not agree and said it was private. I put that she is able to get medicines etc. I put that the expense of healthcare is not distinguished in Pakistan based on your race or religion or your political opinion. Everyone is treated equally in regard to the lack of facilities. I put that she is able to get some work in Pakistan and she has been working in Australia, she has skills. She responded that she has nowhere to live there now. She can’t find a job there. I suggested that with the money from the sale of the house they would be able to buy somewhere else to live. She responded that they did not get much money and the prices have skyrocketed since then. She has no one to look after her mother if she finds a job, but she will not be able to find a job. There is nowhere there to work in security. Her mother has dementia, she has panic attacks. No one wants to marry her, her mother tried to match her using an agency but she could not find anyone because she was involved in the party. No one was interested.
115. [Mr A] gave evidence to the Tribunal. He said that he acquired the wedding business in Pakistan through MQM. He said he was working in the party but he does not remember the date, but more than 10 years ago. I asked him if with the city district government of Karachi he entered into an agreement over a parcel of land [in] September 2006. He said that he was working with the party, pretty much and it involved his whole family.
116. [Mr A] said that MQM was strong at that time. He said that he rented the property, he did not buy it. He agreed that he leased it and with another partner they built on the land and they both ran the business for the MQM.
117. I asked him why he would enter into a business arrangement to run a business in Karachi when he was living in Australia. He said it was income for his family and to look after the party. I drew his attention to the agreement whereby he agreed to develop an empty portion of land into grassy lawn at his own expense in the socio economic centre, [Suburb of Karachi]. I put that he did not have a partner. He said it was his uncle, who has now passed away, who spent the money and he looked after it. The lease was the land and it was only in his name because he was a member of MQM.
118. The lease was for 5 years with effect from [September] 2006 to [September] 2011. I asked what happened at the end of 2011. He said the lease was continued for a couple of years. He said it was 3 or 4 years. I asked if he stopped paying the rent and he said he was not managing it, it was his uncle. He then said that his uncle paid a lump sum amount to extend the lease. He paid rent until the hall was broken down but he does not remember the year.
119. I asked if it was in [2018] because that was when the lease expired.
120. I asked him what he was told, why the marriage hall was pulled down. He said that the army was involved and the MQM power was basically finished at that time.
121. I put that in or around 2016/7 the Sindh Building Control Authority had been directing marriage hall owners to produce the relevant records in respect of the approved building plan for the establishment of their marriage halls. I put that the SBCA has been demolishing these halls and continues to do so. He said that in some areas it might be like that but this was a park area and it was purely given to him to develop in that way.
122. I put that it was in some of the areas they were removing all of the marriage halls as they were classified as illegally built marriage halls on amenity plots. He responded that the illegals were where the government had not signed the papers but his place was with the approval of the authorities.
123. I put that a lot of these places were not built in accordance with the regulations. Even though they were handed over and also they shouldn’t have been handed over because they were amenities. When they were built on, they were not built in accordance with the building control authority regulations. There were quite a number that were demolished in [Suburb 1] but there were other areas as well throughout Karachi. There are still cases ongoing before the Supreme Court where people have been challenging the government attempts to demolish them.
124. He said that his issue is different. There is a park next to his hall and it was allocated by approval of the government. I put that he would have been served with some documents in regard to the demolition because the government demolished it. He responded that the army was there and the police. They said that there was an order from the court to demolish the halls so no-one would say anything.
125. [Mr A] then said that he was not there when it happened. His manager was there but he could not fight it, as it was not in his name.
126. I put to him that his mother and sister had nothing to do with the building of the hall or the running of the business and he said that his sister went and sat with the manager to see what was going on, as she was involved with the arrangements or sometimes the manager would go to her home. I asked him what his partner was doing and he said that there were 3 halls so she had to go to keep an eye on what’s going on.
127. He confirmed that he was a member of MQM in Australia and he has a personal [Social media] page. I put it was not publicly available after September 2013 and that was the last time he posted on it. He said yes. I asked if MQM Australia had a [Social media] page and he said that it did. He did not personally post on that page as he does not manage MQM [Social media]
128. I put that at a function he claimed to have attended, it was publicly posted on the [Social media] page but there is no public posting of himself, his mother or sister on that page.
129. I put to [Mr A] that he travelled to Pakistan just about every year since he arrived in Australia. He said the last couple of years he did not. I said there was COVID then. I put that his passport indicates that he travelled in 2009, 2010, 2011, 2012, 2013, 2014, and then it just continues on and he recently went in March 2023, to Pakistan. He said he has been to [Country 2] too.
130. I put that he was able to enter Pakistan and exit and nothing has happened to him when he went. He said he does not have a problem at the airport but in the city. I put nothing happened to him in the city either. He said because he does not live in Pakistan permanently nothing happened at the airport. He just goes over there to get the job done and to come back. I put that if the Pakistani authorities had any interest in him they would have picked him up. He said that they have a problem with the other political parties. I put he managed to go so many times and this indicated that he was not of interest nor considered to be a high profile MQM member, that anybody would be interested. He responded it is because he does not go into the city, he stays with a friend.

131. I asked about the sale of the family home and he said the money has not come yet but will be coming soon. I put that he will be able to purchase something for his mother and sister over there and he said that he wants to use the money here. He said it is very risky over there, how are they going to live there alone. I explained that they had lived alone previously. He said they had a hard time over there. I put that his mother was able to return in 2023 and he responded that she went back to sign the papers.
132. [Mr A] explained further that his [relative] was MQM and the last time his [relative] went back he was arrested at the airport and went to jail for 3 months and he died. I put to [Mr A] that he went back, but was not arrested. He said that his [relative]’s name was at the airport, but his name is not there.
133. Submission on behalf of the applicants 29 November 2023 written by the applicant
Firstly, you mentioned that our hall could have been demolished due to pending payments. This is not true because our lease was renewed for five years. We have provided this before and I am again submitting the renewal copy with this email. If we were not paying on time then our lease would have not been renewed.
Secondly, you said that there were other halls in Karachi that were demolished. Those halls were demolished for other reasons whereas our hall was legal. We were given lease on the condition that we’ll only build marriage hall on it, that we did, and the same thing is mentioned on the document I am submitting. We were deliberately not given enough time to take any action or stay from court to prevent this. The marriage hall was in my brother’s name. My Brother was not there at that time and the manager couldn’t do anything to stop them.
Thirdly, you mentioned that my brother was at front only till 2013. I am sending some pictures to you to show that we both active and involve with the party. We live in [City 1] and my brother is active member of [City 1] division of party. Therefore, we are mostly at front on those events which are held in [City 1]. The last program you said how could you know that we attended as you didn’t see us in the pictures. I am sending you both pictures and the source of those pictures from MQM Australia’s [Social media] page. I will share. Furthermore; I am sharing the links of videos showing how women who are associated with MQM are treated in Pakistan. Women are abused, threatened, and targeted.
Lastly, you asked about my brother travelling to Pakistan without any issues. I would like to inform you that he travels on Australian passport, not on Pakistani passport and his name is not in ECL (Exit Control List), that is why I have not been stopped at airport-by-airport security. The problem we face as a party member is from police and rangers once we are in Pakistan. We are not allowed to work, do any activity or any business because of our association with MQM. They force us and want us to disown our party MQM and our leader Altaf Hussain. So far, they have been successful in dividing the party into two groups MQM Pakistan and MQM London. MQM Pakistan consists of those people who are living in Pakistan and are forced to disown Altaf Hussain and are considered as member of separate party, yet still they are unable to perform their activities freely. Whereas MQM London consists of people who are still with Altaf Hussain and with party. These people are specially targeted by police and rangers. As we informed you before my [relative] Saleem Shahzad was arrested in 2017 for his association with MQM and Altaf Hussain. He later died due to the health complications he sustained during his arrest. He already mentions in interview he went to Pakistan for related MQM things even last time back 2012 he went Nine zero and he invite Farooq Sattar to visit Australia and you can see many photos in Australia [Social media] group. When Farooq Sattar came to Australia.
I am already [Age] years I have health issues as well; I went two to three time check my heart ECG in [Suburb 2] medical centre. My blood pressure is going high with anxiety fear and panic attacks what I been through in my Past life. Some time I wake up in mid of night when I saw dreams with people came to my home and give us threaten about my killed life, rapped, and used dirty language. I was Screaming and shaking my self mid of night because that damage my mentally life. Last 8 years I am in Australia at least here is I have right to live my life at least people can’t torch me or touch me. there is right department about speak. Police and Government are supportive in Australia.
My mother is over [Age] years old and got medical issue how I will be serving with her on Pakistan
We don’t have anything left there I don’t have any relative or friends, how I will survive myself with mother by my own, there is so hard to live 2 single women in Pakistan plus we are involved in MQM.my brother got [surgery], his health is not good like before.
134. Submission by the applicant received 25 March 2024
Recently, my [uncle], who is my [parent]'s brother, along with his wife and their [kids], received asylum in [Country 2]. This shows the dangers faced by our family due to our involvement with the MQM.
We are two women, and we fear going back home because of the risk of death, harassment, and violence, especially our involvement in MQM, in past we are facing lot of issue of this, and their women are not respected there, they can do anything without any fear.
I am over [Age] years old now, and my mom is over [Age]. We've already spent so much of our lives living in fear, and we can't bear the thought of going back to that. We're not pretending; our situation is real, and we genuinely need help.
Tribunal hearing [AAT2-2] held on 28 March 2024
135. I put to the applicant that she told the RRT1, at the hearing, that they also had some land which has now been occupied by another person who has illegally built a house on it whereas she stated at AAT2-1 hearing, when asked about the block of land, that they did not have any other property other than the house and the marriage hall. I put to her that this was inconsistent. She responded that she was asked about the marriage hall and the rangers took it. I again asked her if they had other land other than the marriage hall and she said they did, it was owned and still is owned by her brother.
136. I then informed the applicant that I would put to her information, pursuant to s.424AA of the Act, and that, subject to anything else she might say, form reason or part of the reason for affirming the decision under review. I advised the applicant that she did not have to comment or respond immediately and she could seek additional time to do so, including after the hearing. I also advised the applicants if I relied on the information, I may find that it undermined their credibility and I may conclude that their claims were not genuine and affirm the decision under review.
137. I put to the applicant:
·[Mr A] and her mother gave evidence to AAT2-1 she left Australia alone in 2023 and met up with [Mr A] in Pakistan to sell the family home and to bring the proceeds to Australia. I advised that this information is relevant as it indicates that second applicant and [Mr A] were of no interest to the Pakistani authorities or anyone else in 2023. The applicant responded stating that in 2023 her mother and brother went to [Country 1] due to family issues and they went to Pakistan, they did all of this in secrecy. They did not have an issue with the authorities, only MQM. They only stayed for a short time and sold the house and came back
·at a Department interview she told the Department that her father had a marriage hall business prior to his death in 2004. I put that evidence given to the Tribunal [AAT2-1] at hearing by [Mr A] is that the wedding hall business was purchased with a partner, his uncle, in or about 2006. At the time of purchase the marriage hall was required to be built and was built by his partner. I advised that this information is relevant as it indicates that evidence she has given is inconsistent. She responded stating that her father had no marriage hall. He used to work in a marriage hall.
·by written submission to RRT1 the applicants claimed that in [Year] their marriage hall named ‘[Business name]’ was destroyed, believed to be by paramilitary Rangers, and they were now without any business. In their visitor visa applications to the Department, the applicants provided a copy of the lease agreement for the marriage hall and suggested that the business was operational. I advised that this information is relevant as it indicates that the applicant’s evidence is inconsistent. The applicant responded that the visitor visa they applied for in 2015, she said the hall was destroyed in [Year] and her brother has more details and he can elaborate. They applied in 2015 for a visitor visa and the hall was finished when they were in Australia.
·[Mr A] told AAT2-1 that she used to go and sit with the manager to see what was going on, sometimes she would go there and talk to the manager and sometimes the manager would come to their home and talk to her. This information is relevant because it indicates that neither applicant actively managed the wedding hall business and that therefore no adverse opinion was imputed to them because they managed a wedding hall business. It also suggests that the applicant could not have been threatened about the marriage hall business many times when she lived in Karachi, as stated to the Department at interview because it was managed by a manager. The applicant responded stating that in the beginning when she went she sat with the manager and sorted out financial dealings when people started coming to their home she stopped going altogether.

·she told the Department that she worked in [occupation 1] in her visitor visa and the not marriage hall. She responded that the [workplace 1] was proper work and she would keep track of the marriage hall business. Her actual work was [workplace 1] business. I put this information was relevant because she omitted to tell the Department she was working the marriage hall. She said it is family business and not her permanent job.
·[Mr A]’s movement records indicate that he travelled in and out of Pakistan in 2009, 2010 2011, 2012, 2013, 2014, 2016, 2018, 2019, 2023. He stated he posted on the internet on publicly accessible [Social media] page. Posts on that [Social media] page ceased in 2013. His [Social media] page was in the public domain up until September 2013. He travelled in an out of Pakistan after that time. I put that this information was relevant because he suffered no harm when he travelled to Pakistan. The applicant responded and said that her father died and that is why his brother came and she took her mother to meet him and he came to see his mum and she was all the time sick. People came to the home asking for money. No one wanted to do anything and no one helped them. Her brother stayed at a friend’s house. He did not have problems at airport. They had problem with party people. Women are harassed and raped in Pakistan they do not know how to talk. Her mother was scared they would harm her.
·[Mr A] told RRT1 that he is well known for his support of MQM in Pakistan, he even visited the Nine Zero Headquarters of MQM in Karachi in or about 2013 and spoke about MQM’s activities in Australia and invited members to visit Australia. [Mr A] was able to enter and exit Karachi airport without problems. He makes no claims of suffering any harm. This information is relevant to the review because it indicates that [Mr A] was not of adverse interest to the Pakistani authorities or imputed to have any adverse interest because of his family and it may suggest the applicants are not imputed to have an adverse profile in Pakistan because of [Mr A]. The applicant said that [Mr A] just go for short time, he just go in and out. She and her mother were facing the consequences and they had to constantly change their address. When he came to Pakistan he only came for a few days and he would stay at a friend’s house. She would take her mother to see him there. They have no issues with authorities, MQM party has split.
·MQM Australia has a [Social media] page. Neither applicant 1 nor applicant 2 are shown on that publicly available [Social media] page that was accessed by the Tribunal on 23 November 2023 and again on 28 March 2023. The relevance of this information is that it indicates that their attendance would not have come to the attention of anyone except MQM function attendees and would not have come to the attention of the Pakistani authorities or non-state agents. The applicant responded stating that last time she has shown the activities and places they visited.
·the applicant told the AAT2-1 she was able to travel by public jeep in Karachi. This information is relevant because it indicates that applicant was able to leave the house safely as a single woman going to and from work without being attacked or harmed by anyone. The applicant responded that for work she employed a person to take her to and from work and she said when things escalated she stopped the service.

138. I informed the second applicant that I would put to her information, pursuant to s.424AA of the Act. I advised her that the information would, subject to anything else she might say, form reason or part of the reason for affirming the decision under review. I advised her that she did not have to comment or respond immediately and she could seek additional time to do so, including after the hearing. I also advised her if I relied on the information, I may find that it undermined her credibility and I may conclude that her claims were not genuine and affirm the decision under review.
139. I put to the second applicant:
·Her daughter told RRT1 at the hearing they also had some land which has now been occupied by another person who has illegally built a house on it. She also stated to AAT2 when asked at the AAT2-1 hearing about the block of land and said they did not have any other property other than the house and the marriage hall but at this hearing she stated that the land belonged to her brother. I explained that this information is relevant because it is inconsistent. She responded that she did not want to comment she does not know she does not remember.
·[Mr A] gave evidence to AAT2-2 that she left Australia alone in 2023 and met up with [Mr A] in Pakistan to sell the family home and to bring the proceeds to Australia. I explained that this information is relevant as it indicates that she and [Mr A] were of no interest to the Pakistani authorities or anyone else in 2023. She responded that her son took her there, she was inside, her son handled all the dealings, she does not know how much it was sold for or where the money went and in secrecy they came back.
·Her daughter, at a Department interview, told the Department that her father had a marriage hall business prior to his death in 2004. [Mr A] said that the wedding hall business was purchased with a partner, in or about 2006. Her daughter told T2 that her father only worked in a marriage business. I explained that this information is relevant because it indicates that her daughter’s evidence is inconsistent. She responded that it is difficult for her to understand and recollect things or remember and she is anxious. She is older now and her hand and feet are shaking. I put to her that I did not see her shaking.
·[Mr A] told AAT2 that her daughter used to go and sit with the manager to see what’s going on, sometimes her daughter would go there and talk to the manager and sometimes the manager would come to their home and talk to her. I explained that this information is relevant because it indicates that neither she nor her daughter actively managed the wedding hall business and that no adverse opinion was imputed to them because they managed a wedding hall business. It was managed by a manager and not by daughter or her. She responded that she used to go there and visit.
·[Mr A] posted on the internet on a publicly accessible [Social media] page. Posts on that [Social media] page ceased in 2013. His [Social media] page was on the public domain up until September 2013. He travelled in an out of Pakistan after that time. Movement records indicate that he travelled in and out of Pakistan in 2009, 2010 2011, 2012, 2013, 2014, 2016, 2018, 2019, 2023. I explained that this information is relevant as it indicates that he was not of interest to anyone and was not harmed on his return. The applicant responded stating that he was in hiding and he would do what he needed to do.
·[Mr A] told RRT1 that he is well known for his support of MQM in Pakistan, he even visited the Nine Zero Headquarters of MQM in Karachi in or about 2013 and spoke about MQM’s activities in Australia and invited members to visit Australia He makes no claims of suffering any harm during any of his visits to Pakistan by anyone. I explained that this information is relevant as he was not harmed and did not claim to be in hiding. She said the most person at risk is her and her daughter living alone.
·Her daughter told the Department that she worked in [occupation] in her visitor visa application and a not marriage hall. I explained that this information is relevant because it is inconsistent. She responded that is why she did not leave the house much, they harassed her and intimidated her. I put that her daughter had a fulltime job as a [occupation] and went to work. She said she did not go full time she was constantly stressed and would wear a full body covering.
·MQM Australia has a [Social media] page. Neither she nor her daughter are shown on that publicly available [Social media] page that was accessed by the Tribunal on 23 November 2023 and again on 28 March 2023. I explained that this information is relevant as it indicates that their attendance would not have come to the attention of anyone except MQM function attendees and would not have come to the attention of the Pakistani authorities or non-state agents. She responded that she was always busy with work and that is why she never had a chance of being photographed.
·Her daughter told the T2 she was able to travel by public jeep to work. I explained that this information is relevant because it indicates that her daughter was able to leave the house safely as a single woman going to and from work without being attacked or harmed by anyone. She responded that she would not go out of THE house much at all and stay at home and wear full body covering she would get harassed going back and forth.

140. I put to the applicant that she told RRT1 that she feared death from strangers but that she has not been harmed by any strangers. She responded that they kept getting threats as they were two single women at home. The language they used felt very dangerous. She does not want to be a target or be raped.
141. I discussed, with both applicants, the independent evidence that in December 2016 the Karachi Development Authority (KDA) were carry out operations to demolish illegal built wedding halls. The independent evidence does not suggest that any particular groups with political affiliations were targeted. The wedding halls business was not demolished because of the brother’s or family’s association with MQM but because the Karachi authorities were demolishing many wedding halls due to lack of building approvals and illegal structures. The applicant responded stating that her brother had a partner, his uncle who lived in Karachi. She said her uncle passed away and the marriage hall was managed by a manager. After that people came to their home and he would come. I put to her that the partner was running the business and there was manager, I asked why she needed to go there at all. She responded that the marriage hall needed colour decorations, what needed to be booked etc and what is happening with the finances and keep them updated. I put that she had claimed she was also working at the [workplace 1].

255. The independent evidence from DFAT indicates that a lot of women in Pakistan suffer from domestic violence and there is now new legislation and the Pakistani authorities are intent on improving the situation for women suffering from domestic violence … and if women are being attacked or harmed there is greater security now for them than previously. When put to the applicants the applicant responded that she will not have a domestic problem, but a party issue and that is much wider. As I do not accept that the applicant had an adverse political profile or imputed political profile in Pakistan when they resided there and I do not accept that there is a real chance they will suffer serious harm for their attendance at MQM/MQM-L functions in Australia or Pakistan, I do not accept that the applicant would be imputed with an adverse political profile as a woman with a party issue.
256. The applicants claim that they cannot live on their own in Pakistan, they fear harm as single women, there is no man and they are vulnerable. The applicant claims that she fears the MQM and the Rangers, not ordinarily people as they will not touch or harass you on the street. As I do not accept that the applicants suffered any harm from anyone when they lived alone in Pakistan, and whilst I accept there is no man living with them, the second applicant stayed on her own twice when the applicant came to Australia prior to 2015 twice. When put to her that she lived alone then, she said she could not remember. The applicant said that her sister stayed. Further, since 2004 both applicants have lived alone together in Pakistan and nothing happened to them. I am not satisfied there is a real chance the applicants will suffer serious harm living alone in Pakistan without a man, on their return within a reasonably foreseeable future. In light of the second applicant’s return to Pakistan without suffering any harm, I find there is not a real chance that the applicants will suffer serious harm for being Urdu speaking Muslim women in Karachi.
257. As to the applicant’s claim that women do not have any rights as women in Pakistan, I accept that woman are not treated the same way as in various western countries. The applicant also stated that women do not have a problem only when it is political. On the first named applicant’s evidence, she was living in Karachi, obtained a University degree and managed to work for about five years prior to and up to her departure from Pakistan. This experience appears to accord with DFAT’s reports that some, mostly wealthy, Pakistani women have attained senior positions in public life, but their experience is not representative of the general population. T1 discussed DFAT’s assessment that women in conservative societies outside urban centres are more likely to encounter problems. The second applicant did not disagree and stated that other than the matters she had claimed she did not experience other problems living in Karachi.
258. As I do not accept that the applicant had any problems or any issue with her rights due to an adverse political opinion, I am not satisfied that there is a real chance the applicants will suffer serious harm within a reasonably foreseeable future on their return to Pakistan because they are women or because women do not have rights in Pakistan or purely for reason of being Urdu speaking Sunni Muslim women, or single women living alone without family or male support protection.
259. I have also considered whether the independent evidence provided by the applicants suggests that the applicants will be seriously harmed for their imputed political opinion as supporters of MQM-L in Australia. The independent evidence refers to circumstances of politicians, an MQM leader and high profile members of MQM, who have suffered harm or been killed etc. Reports such as Amnesty International Report ‘Human Rights Crisis in Karachi’ dated 1 February 1996, United Nations Human Rights Mandate dated 10 March 2017 and UN Committee against Torture findings regarding Aftab Ahmad 7 July 2017 do not suggest that the applicants will be seriously harmed for their imputed political opinion as supporters of MQM-L. I am not satisfied that there is sufficient information in these articles provided that in their particular circumstances it can be concluded that there is a real chance the applicants will suffer serious harm on return to Karachi purely for reason of their support of MQM either when they lived in Pakistan prior to 2004 or when they joined MQM-L in Australia.
260. For completeness, I note that the applicants did not claim to have a well-founded fear of harm based on being Urdu or Sunni Muslim, if returned to Pakistan. Accordingly I do not accept the applicants have a well-founded fear of persecution based on their Urdu ethnicity or Sunni Muslim religion or any related reasons, imputed or otherwise, if they were to return to Karachi or elsewhere within Pakistan, within the reasonably foreseeable future.
261. I have considered if there is a real chance that the applicants, Urdu speaking Sunni Muslim women from Karachi, will suffer serious harm in their particular circumstances singularly and cumulatively. In light of my findings above regarding their circumstances I do not accept that there is a real chance that the applicants will suffer serious harm on their return to Pakistan within a reasonably foreseeable future.
262. They therefore do not satisfy s.36(2)(a).
263. I am required to consider whether there is a real risk that the applicants will suffer significant harm on their return to Pakistan.
264. The applicants are Urdu speaking Sunni Muslim mother and daughter, who claim that they will have to live alone on their return to Pakistan, without family or male protection. Whilst I accept that the applicant may not have family, male protection or support networks to look after their welfare and security in Pakistan, they lived alone since 2004 in Pakistan until they came to Australia. They were not harmed by state or non-state agents when they lived there and they do not have an adverse profile in Pakistan, either when they lived there or since residing in Australia. As stated above, as MQM-L is no longer an active political force I do not accept they will attend functions or demonstrations on their return, therefore I do not accept that there is a real risk they will suffer significant harm on their return within a reasonably foreseeable future for their political opinion.
265. For completeness, I note that the applicants did not claim to fear harm based on being Urdu or Sunni Muslim, if returned to Pakistan. Accordingly, I do not accept there is a real risk the applicants will suffer significant harm for their Urdu ethnicity or Muslim religion or any related reasons, imputed or otherwise, if they were to return to Karachi or elsewhere within Pakistan, within the reasonably foreseeable future.
266. I accept as stated above that violent crime occurs across Pakistan, including armed robbery, assault, carjacking and kidnapping but the security situation has improved significantly in recent years, crime rates in Karachi have also dropped. I do not accept the general violence that occurs within Karachi is specific to the applicants and cannot be described as involving systematic and discriminatory conduct toward the applicants. I do not accept that there is a real risk of serious harm arising from the general security situation in Karachi specifically and in Pakistan more generally.
267. In view of the above country information and the applicants’ reported experiences and assessment of the situation, discussed above, I am not satisfied that there is a real risk they will suffer significant harm on return to Karachi, within a reasonably foreseeable future, for reason of being women, or single women living alone without family or living without male support or protection.
268. While I acknowledge that the second named applicant has some health issues there is no medical evidence before the Tribunal to indicate that she cannot return to Karachi and resume living with her daughter as they did for many years prior to coming to Australia. Therefore, I am not satisfied that there is a real risk the applicants will suffer significant harm for living alone without family or male protection in Karachi Pakistan, within a reasonably foreseeable future.
269. I accept that the applicant has a medical problem and will require medications and/or medical services on return to Pakistan. As for the applicant’s concerns that as her mother is ill, she has no-one to help her in Pakistan to take care of her and she does not have any close family in Pakistan, as I do not accept that her mother has medical problems it is mere speculation on the applicant’s part that her mother is ill or requires someone to care for her.
270. In general in Pakistan, health care services in hospital emergency centres are meant to be free of cost. Medicines are to be made available from hospital dispensaries either for free or at a nominal cost. For outpatients, a nominal fee is supposed to be charged, although medicines are to be provided from public dispensaries. In-patient facilities are normally subject to charges, but these are nominal compared to the costs of private health facilities.[35] While official policy on health coverage in Pakistan affirms that all above services must be available, in practice, public health facilities tend to be poorly resourced. Staff attendance – particularly the presence of doctors – is uncertain in many facilities.
[35] UK Home Office, Country Policy and Information Note Pakistan: Background information, including internal relocation, June 2020, p 17.
271. The Pakistan Bureau of Statistics released a report in 2019, in which it recorded there were a total of 1,279 hospitals; 5,671 dispensaries, 747 MCH (maternal and child healthcare) centres, 441 tuberculosis centres, 686 rural health centres; 263 sub-health clinics and 5,264 basic health centres across Pakistan in 2018, with a combined total of 132,227 beds.[36] Despite an elaborate and extensive health infrastructure, health care delivery suffers from some key issues such as, high population growth, uneven distribution of health professionals, deficient workforce, insufficient funding, and limited access to quality healthcare services.[37] Access to healthcare is limited, especially for refugees and IDPs. Weak health infrastructure and surveillance systems, poor hygiene practices in homes and hospitals, and community scepticism towards public health campaigns has contributed to outbreaks of disease, including Dengue Fever, HIV, and Polio.[38]
[36] UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions, September 2020 at 2.2.1.
[37] Ibid.
[38] UK Home Office, Country Policy and Information Note Pakistan: Background information, including internal relocation, June 2020, p 18; ACAPS, ‘Pakistan – Key priorities’, 20 April 2020.
272. MedCOI noted in January 2020 that most private health facilities in Pakistan were in urban areas. The private sector plays a vital role in the delivery of healthcare services in Pakistan. Most private hospitals, clinics, and health related facilities are in urban areas and are well-equipped with modern diagnostic facilities. These private healthcare options are in greater demand than healthcare available through the public sector.[39]
[39] UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions, September 2020 at 2.3.1.
273. I put to the applicants that they are able to get healthcare in Pakistan if needed, it is provided by a mix a public and private hospitals, clinics and GP services and medicines are available. Everyone is treated equally in regard to the lack of facilities. The applicants did not agree.
274. Based on the evidence before me, I find that the inadequacies of the Pakistani health care system or the inability to access medical treatment in Pakistan that the applicants may face on return to Pakistan does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information does not suggest that any failure to provide the applicants with relevant and appropriate health care treatment or support will be due to the Pakistan economy rather than any intentional act or omission. I also find that the risk of harm due to inadequate heath care services in Pakistan is one faced by the population of Pakistan generally and not faced just by the applicants only.
275. As for the applicants having no means of support or living in Karachi, I accept that the second applicant is elderly, she has never worked and the marriage hall business was destroyed, so they lost that income. [Mr A] still has land there. The applicant worked in Karachi and travelled to and from work without being harmed. Whilst I accept that the applicant may struggle to find a job on her return, especially in security, when put to the applicant that she would be able to find work she did not agree. The applicant has a university degree, she has worked in Australia, she has shown herself to be resourceful and she has been able to find work in Australia. She has worked in Pakistan in [a workplace 1]. Whilst she claims she will not be able to look after her mother, it is mere speculation on her part that her mother requires her care and she cannot work for that reason. I am not satisfied that the applicant will not be able to find work.
276. The applicants also claim they have nowhere to live. I note that the second applicant’s home has been sold. When put that with the money from the sale of the house they would be able to buy somewhere else to live, the applicant said that they did not get much money and the prices have skyrocketed since then. They do not suggest that they have made any enquiries regarding buying a property. I accept that prices have increased in Pakistan. Independent evidence[40] indicates that prices has been substantially increased across the country after unscrupulous traders made quick money, adding to the economic sufferings of low- to middle-income consumers. These are problems experienced by the Pakistani population generally. Further, I am not persuaded that the applicants are not in a position to find a property to live in especially as the second applicant has received the proceeds of sale of the second applicant’s home.
[40] Pakistan braces for high prices as fruit, vegetable costs surge before Ramadan - The Economic Times (indiatimes.com)
277. The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. I have rejected the claims that they were harmed by strangers, rangers or MQM when they lived in Karachi therefore I do not accept that there is real risk the applicant will suffer both psychologically and physically and or suffer possibly death on their return within a reasonably foreseeable future from non-state agents or state agents. I find there not a real risk that the applicants will be arbitrarily deprived of their life.
278. For the reasons already stated, I have found that there is not a real chance the applicants will face serious harm from the Pakistani authorities on return on the basis of their imputed political opinion or political opinion or from the imputed political opinion of [Mr A] or because they are women who live alone without family or male protection. As ‘real chance’ and ‘real risk’ involve the same standard, it follows that based on the same information, and for the reasons stated above, I am also satisfied there is not a real risk of significant harm to the applicants if they return to Pakistan within a reasonably foreseeable future.
279. There is no suggestion the applicants face the death penalty for any reason.
280. Having considered all of the applicants’ claims, individually and cumulatively, I am not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they returns to Pakistan now or in the reasonably foreseeable future.
281. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(aa).
CONCLUSIONS
282. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
283. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
284. There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
285. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
286. The Tribunal affirms the decision not to grant the applicants a protection visa.
Lilly Mojsin
Member

ANNEXURE A
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.

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.
…

[2024] AATA 2740

7 May 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Appeal