1611350 (Refugee) [2018] AATA 432 (23 January 2018)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1611350
COUNTRY OF REFERENCE: Pakistan
MEMBER: Michael Judd
DATE: 23 January 2018
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 23 January 2018 at 12:17pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Race – Ethnic Awan – Particular social group – Family members of wealthy business people – Kidnapping for ransom – Extremist groups – Extortion – Access to health care – Internal relocation
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 389
Chand v Minister for Immigration and Ethnic Affairs (1997) FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Singh (1997) 72 FCR 288
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) HCA 55
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs, (unreported, 17 September 1998)
SZTOO v MIBP [2015] FCCA 1631Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) [in] July 2016 to refuse to grant the three applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The primary applicant is [name] (the primary applicant); the secondary applicants are [name] (husband) and [name] (child), who the Tribunal accepts are members of the same family unit as the primary applicant.
The applicants, whom the Tribunal accepts are all citizens of Pakistan, applied for the visas [in] January 2015. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or (aa) of the Act; are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the primary applicant.
More specifically, it is apparent to the Tribunal that the delegate refused the visas because:
a)He or she was not satisfied that the primary applicant faced a real chance of serious harm amounting to persecution in Pakistan, including Karachi, on the basis of being ethnic Awan;
b)The delegate was not satisfied that by reason of time spent in Australia, the applicants were at any elevated risk of serious harm at the hands of the Taliban or anyone else if returned to Pakistan;
c)The delegate was not satisfied there was a real chance of persecution on account of the primary applicant being the daughter of a retired wealthy businessman in Karachi;
d)In relation to complementary protection grounds, the delegate found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Pakistan there was a real risk the applicants will suffer significant harm as defined.
For the above reasons the members of the family unit were also refused protection visas.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.
COMPLEMENTARY PROTECTION
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 an attachment to this decision.
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
COUNTRY OF REFERENCE AND HOME AREA
The applicants claim to be citizens of Pakistan and have provided documents in support of their identity to the Department. In the absence of any evidence to the contrary, the Tribunal accepts that the applicants are citizens of Pakistan and that Pakistan is their country of nationality and the receiving country.
The Tribunal is satisfied on the evidence presented before it that none of the applicants have a present right to enter and reside in any other country. The Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3) of the Act.
The primary applicant was born in Karachi, Sindh Province, Pakistan on [date]. She claims that she belongs to the Awan ethnic group and that her religion is Sunni Islam. She married the [secondary applicant] [in] November 2011 in Abbottabad, Pakistan. She holds no other citizenships or nationalities. Indications from the departmental file are that she has resided in the Karachi area all of her life prior to arrival into Australia. The Tribunal finds that the home area of the primary applicant is Karachi.
The secondary applicant was born in Abbottabad in the Khyber Pakhtunkhwa province on [date]. He holds no other citizenships or nationalities and the Tribunal is satisfied he has no right to enter or reside in any country other than his country of nationality Pakistan. The Tribunal finds that in the event both applicants return to Pakistan as a couple, their home area will be Karachi.
The infant [child] of the relationship, [named], was born in [Australia] on [date]. The Tribunal accepts that the child applicant holds citizenship and nationality of Pakistan and not of Australia, notwithstanding that [the birth was] in this country. [The child] belongs to the [specified] ethnic group and [their] religion is Sunni Islam. The child applicant has never been to Pakistan and has no affinity to any particular area.
MIGRATION DETAILS
[In] June 2012 the primary applicant was granted a student (dependent) [visa] whilst still resident in Pakistan. The primary applicant arrived into Australia from Pakistan [in] March 2013. [In] March 2014 she became subject to a bridging visa A which ceased [in] March 2015. [In] January 2015 the primary applicant lodged the protection visa application and a bridging visa C was granted. The bridging visa C ceased [in] March 2015; [later in] March 2015 another bridging visa C was granted. She remains subject to this bridging visa.
The secondary applicant entered Australia initially [in] December 2009, he entered into [City 1], and was subject to a student visa. He returned to Pakistan twice in 2011 and once in 2013 (folio page 136). The Tribunal notes that the secondary applicant arrived into Australia over three years prior to the primary applicant, who arrived into Australia [in] March 2013.
ASSESSMENT OF CREDIBILITY
The Tribunal’s task of fact-finding involves an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[1] See, for example: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan, Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[2] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[2] (1996) 40 ALD 445 at 482.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[3] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[4]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[3] (1996) 185 CLR 259.
[4] At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[5] Nevertheless, as Burchett J counselled, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.[6]
Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs,[7] ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’
[7] (unreported, 17 September 1998).
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[8] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[9] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[10] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:
the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[11]
[8] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.
[9] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241.
[10] See MIMA v Rajalingam (1999) 93 FCR 220.
[11] (1999) 197 CLR 510 at [191].
CONSIDERATION OF CLAIMS AND EVIDENCE
The key matters for determination by the Tribunal in this matter are whether the applicants are persons in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or (aa) of the Act or are members of the same family unit as a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS ARISING FROM THE PROTECTION VISA APPLICATIONS TO THE DEPARTMENT
The claims of the primary applicant are outlined within a signed statutory declaration declared at [City 1] [in] December 2014 located at folio pages 163 to 170 of departmental file [number]. There are no independent written claims of the secondary applicants located on the departmental file.
Within the statutory declaration the primary applicant confirmed she had been born in Karachi on [date] and that she is a citizen of Pakistan. She confirmed that she did not have any right to reside in any other country. Her father’s name is [name] and her mother’s name is [name]. She has [specified siblings] who currently live in Pakistan. She married the [secondary applicant] [in] November 2011 in Abbottabad, KPK, Pakistan. The secondary applicant [named] is the only child of the relationship and was born in [City 1].
After the marriage in 2011 the primary applicant continued to reside at her parent’s home in Karachi as her husband was living in Australia, having entered Australia on a student visa ]in] December 2009. Her husband had returned to Pakistan to marry and re-entered Australia soon after the marriage. She lived all of her life in Karachi. She claims that she did not live with her in- laws in Abbottabad after the marriage because her husband’s [relative] did not like her and it was best that she stayed with her own parents.
She claims that her husband came earlier to Australia than her as his visa was granted earlier. She did not come with him at that time (December 2009) as they did not marry until [November] 2011. None of the applicants have returned to Pakistan since 2013.
She claimed she left Pakistan to be with her husband but also because of threats her family had received. Her father was a ‘big businessman’ in Karachi, running a [service] business which had [equipment] and that he did work for the government of Karachi, being [specified work].
The Tribunal has considered a significant amount of information concerning the father’s business and issues it was experiencing in satisfying a significant debt for services provided to the Pakistan Government. The Tribunal is well aware of the prevalence of falsely created documents in Pakistan, however, with respect to the documents provided the Tribunal is satisfied they are genuine. The documents are of sufficient number and of sufficient detail to reassure the Tribunal as to their genuineness. The Tribunal accepts that the primary applicant’s father did own and operate a profitable [service] business based in Karachi and that as recently as 2017 a significant and ongoing debt was owed to the business arising from [their specified work]. The Tribunal accepts that the primary applicant’s father had been, up to 2014 at least, a man of significant wealth and that the family benefited significantly from this wealth.
Within the statutory declaration, the primary applicant stated that on [a date in] February 2014 her father was kidnapped by people not far from her parent’s house in Karachi. The Tribunal notes that this incident is alleged to have occurred at a point in time that the applicants were living in [City 1], Australia.
The family driver had reported the kidnapping to the family and her [brother] went to the local police station and reported the incident. After more than a week, kidnappers rang the family and demanded money and said that they belonged to the Tehreek Taliban of Pakistan (TTP). They stated that they ‘are all over Pakistan’ and if the family didn’t give the ransom money they would kill the whole family, starting with her captured father.
She claimed the kidnappers asked for [amount] Pakistani rupees as ransom. This would equate to approximately $[amount] AUD. Due to the poor state of the father’s business at that time (the business being owed the money from the government) in February 2014, the family did not have sufficient money to pay out the ransom. Her [brother] requested that the TTP kidnappers not kill the family and father but they did not listen, which caused the primary applicant and her family to become worried. The kidnappers sent the family video footage showing her father pleading that the family should do something otherwise the kidnappers would kill him. The Tribunal has viewed the footage.
She confirmed that her father had done work for the Pakistan government and the government owed her father money. Following the kidnapping, her [brother] held discussions with the government to attempt to regain monies owed so the family could pay the kidnappers. The government officers responded that they did not have the money at that stage. Her brother then borrowed the ransom money from relatives.
The primary applicant claimed in the statutory declaration that another video was sent to the family which showed the kidnappers cutting the neck of an old man during which they gave a warning that they would kill her father and the entire family. This video was not provided to the Tribunal.
She claimed that after about two months her brother sold two of the family’s vehicles for a cheap price and borrowed money from her father-in-law and other relatives to give to the kidnappers, following which they released her father. The father returned and told the family that he had been in or on a mountain with four other kidnapped persons and that the kidnappers had cut one person’s neck in front of them. The father is [on] regular medication. The kidnappers did not give him food other than a small amount of rice and one small bottle of water each day. Her father said they had been treated like animals whilst captured; he had returned to the family in a very sick condition. The primary applicant’s mother and father went to live in their town of [Town 1] following the kidnapping. [Town 1] is located about [distance] from Karachi.
Notwithstanding that monies had been paid over to the kidnappers by the primary applicant’s brother, her brother received a further phone call from these same people who demanded more money. In the call they said if the family did not pay they would kill the primary applicant’s family.
The primary applicant claimed that information about the kidnapping had been passed on to police who had contacted the family back but had done nothing. The Tribunal notes that a report (folio 38) was made by the applicant’s brother to [Town 2] Police on [a date in] February 2014, being the same day as the alleged kidnapping. The Tribunal accepts this to be a genuine copy.
The primary applicant claimed she was told that people in a car started hanging around near her parent’s house in Karachi whilst her parents were living in [Town 1]. Due to the further threatening phone call her brother contacted her father and told her father to come back to Karachi from [Town 1]. By this stage his business office in Karachi had been sold. The Tribunal has viewed documents submitted by the primary applicant concerning the sale of the office and accepts them to be genuine. Arrangements were then made to borrow more money to give to the kidnappers. The primary applicant’s father decided that the family needed to move house to a safer place. She claims that the police knew about the family’s issue but that in every department the police were ‘sleeping’ and that the police have corrupt people.
Her father commenced to rent a house in [Town 3] from about [a date in] June 2014. The Tribunal has sighted copies of a rental agreement for an initial term of 11 months in the name of the applicant’s father. As at the date of the Tribunal hearing, the Tribunal was informed the family remained living in [Town 3]. [Town 3] is situated in Karachi. Her father’s other office and work were still outside of this safe area. He had decided to remove the family from the large family home to live in a small house in [Town 3] for his own life and the life of his family. The Tribunal accepts that the primary applicant’s family did commence living in [Town 3] from about [a date in] June 2014 and that they may still be living [there] at the time of the issue of this decision. Open sourcing indicates that [Town 3] is to a large degree self-sufficient, containing schools, hospital, shops, markets, a [specific] factory, military units, retired and current officer housing and community housing. [Details deleted.] Housing [several housing developments], [Town 3] is stretched over an area of [size]sq km.[12] Its population is roughly [number] and includes all ethnic and linguistic groups of Pakistan. The majority of its population consists of serving and retired armed services personnel along with civilians, bureaucrats and individuals working for [government] organisations.
[12] Source – [Deleted].
The Tribunal accepts that whilst [Town 3] has evolved into an upmarket and sought after area, it continues to retain a strong military presence. It would offer a degree of safety over and above the general Karachi community. The rental agreements for staying on [Town 3] require tenants to abide by the rules of the [local authority] and the rules and regulations of the Pakistan Army.
The primary applicant believed that at the time of making the statutory declaration members of the family may again be kidnapped or killed as the family are now ‘on a list of the Taliban’. (No evidence was presented to support the existence of any document containing a list of targets during the hearing.) Whilst the kidnappers (believed to be Taliban) kidnapped people other than her father, he was the only one to report them to police by making a First Incident Report against them. She described the group as being a ‘big terrorist group’ that is everywhere in Pakistan and that they are extremists. The Tribunal notes that whilst the primary applicant’s [brother] appears to have made a report on [a date in] February 2014, the First Incident Report appears to have been made on or about [a date in] November 2014, about nine months after the capture of the applicant’s father. The reason for the delay in reporting is not apparent to the Tribunal.
Within the declaration the primary applicant described the kidnappers as being animals because of cutting the neck and killing [an age]-year-old man. The kidnappers had provided further footage to the family which purportedly showed this incident. The Tribunal has not seen the footage. The primary applicant fears that these people would do the same thing (beheading) to her family. She claimed that because she now has a [child], she is worried about what may happen to her and her own family.
Whilst in Australia she had wanted to go back to Pakistan to support the family but the family stopped her, telling her not to come back because ‘the people’ (kidnappers) know everything. The Tribunal has sighted copies of airline bookings for the primary applicant and her [child] to travel to Islamabad [in] September 2014, returning to [City 1] [in] November 2014. This travel, however, was not paid for and did not occur. The submissions suggest that the primary applicant wanted to return to her family during this period but her Karachi based family convinced her not to travel due to them continuing to receive threats.
She also claimed that she had to have her child delivered in Australia without any extended family help. She claimed that if it was safe for her to go to Pakistan to deliver the child she would have gone but family told her not to come as they were under threat. The Tribunal notes that the child was born [in] 2014, being about [several] months after the alleged kidnapping.
The primary applicant claimed that she was sure this group would hurt her and her family as they know where she (the family) lives in Pakistan. She was sure that they would hurt and insult her family. She claimed that she cannot live in her city (Karachi) or any other city in Pakistan because the group exists everywhere and that they will demand money from her family as ransom. She claimed that there are many extremist groups in Pakistan and that the groups are armed and have sufficient power to do what they want to do without respect to other people. She claimed that the members of these groups are criminal people ‘mixed with politics’, and they are ready to do anything, including killing, torturing and kidnapping. She described them as radical Muslims who will kidnap her or her family in order to raise money to fund their cause.
Within her statutory declaration the primary applicant expressed her views as to whether she considered authorities in Pakistan would be able to protect her if she returned. She stated that extremist groups and corrupt officials in Pakistan have power to do everything. They establish a ‘strong militant [sic] to kill and kidnap and torture everyone who does not agree with their thoughts or people who disagree on their behaviour’. She claimed that these groups control many systems in Pakistan and the government is unable to stop them or engage in conflict with them due to the corruption which has destroyed civil life in Pakistan. She claimed that these groups have good relationships with all police officers. She has no confidence that she will be safe if she was to return to Pakistan.
In concluding her statutory declaration, she claimed she was still afraid to return to Pakistan and that she would become a victim of ‘the militants oppressive techniques’ in the same way they did to her father. She said her father is lucky to be alive but that if it happened to her she may not be as successful. She claims that she left Pakistan in fear for her life and that she is thankful to Australia for the protection it has afforded so far. She also claimed that she came to Australia as soon as her visa was granted and she was able to travel.
INTERVIEWS WITH THE DEPARTMENT AND THE DECISION RECORD
The applicants attended for interview with the Department [in] June 2016. The applicant’s migration agent provided submissions on 20 February 2015 and post-interview submissions on 23 June 2016, both of which the Tribunal has read and has taken into consideration.
At interview the primary applicant claimed her father had said he was being held in [a specified area in] Balochistan with four others who had also been kidnapped. The applicant’s husband stated that the threats were from criminal gangs rather than the Taliban, whilst the primary applicant was more certain that the group was the TTP.
The primary applicant stated that after the return of her father, her family moved to [Town 3] in Karachi and that her father had retired. The Tribunal notes that in her statutory declaration the primary applicant had stated that her father had continued working for a period following the kidnapping. The primary applicant told the Department at interview that her brother had taken over her father’s business but worked from home unless he needed to meet clients. The applicant’s husband stated that as at the time of interview [in] June 2016 there had not been threats for a year or so.
At the interview the applicant’s migration agent showed the delegate footage which purported to show the primary applicant’s father pleading for his life whilst subject to capture by the TTP. The Tribunal notes that the delegate gave no weight to the footage as the authenticity could not be verified. The Tribunal also notes that the delegate was not able to fully verify the authenticity of copies of what were purported to be Pakistan police documents provided by the applicant. The Tribunal has viewed copies of documents provided to the Tribunal by the migration agent in submissions on 21 March 2017, being colour copies of [Town 3] entry passes for the applicant’s father and a copy of a Sindh Pakistan driving license, also in his name. Colour photos of the father were endorsed on the document copies. The Tribunal is satisfied that the male person depicted in the photos is the same elderly male depicted in the two videos as purportedly taken by the captors between February and April 2014.
The decision record (at page 6) indicates that, notwithstanding that the applicant and her husband were interviewed separately, their accounts of events were considered to be fairly consistent. The Tribunal notes that the delegate considered that the primary applicant appeared generally distressed when recalling her father’s kidnapping. The Tribunal notes reference in the decision record to the effect that whilst a search of sources did not reveal information as to the specific kidnapping incident involving the primary applicant’s father, it was acknowledged that country information was supportive of there having been a rapid growth in the number of kidnappings to a peak in about 2013 and a substantial drop in about 2015. The Tribunal notes that most of these kidnappings were motivated by ransom and that the primary targets were wealthy individuals who were being targeted on an opportunistic basis. The Tribunal also notes that whilst the delegate had doubts as to whether the applicant’s father was in fact kidnapped, it could not be said with confidence that the claims were completely untrue. As such, the delegate accepted that the applicant’s father may have been kidnapped by the Taliban.
During the interview the applicant confirmed that her father has since retired and lives in [Town 3] in Karachi. Her father had not been threatened in the previous year (mid-2015 to mid- 2016).
The Tribunal notes that the delegate made findings of fact, being that the primary applicant is the daughter of a retired wealthy businessman who lives in Karachi, Pakistan. It was found that the applicant’s father was in fact kidnapped by the Taliban in (February) 2014 and that he is now retired and living in Karachi. It was also found that the applicant is Awan in ethnicity. The Tribunal also accepts those factual findings.
The Tribunal notes that the delegate was satisfied that the applicant fears persecution for reasons of her membership of two particular social groups, and, for reasons of her Awan ethnicity. The particular social groups identified were ‘daughters of retired wealthy businessmen’ and ‘returnees from abroad’. The Tribunal also notes that the delegate was satisfied that these were the essential and significant reasons for the persecution as feared and that the persecution involved ‘serious harm’ as defined by the Act. The delegate was also satisfied that the persecution feared involved systematic and discriminatory conduct. It would appear that the key issue for the delegate was whether the persecution was well-founded in the sense of there being a real chance that if the applicant returned to Pakistan she would be persecuted for one or more of the reasons identified in s.5J(1)(a) of the Act.
The Tribunal notes that the delegate did not accept that time spent living in Australia contributed in any sense to elevating the primary applicant’s risk of suffering serious harm at the hands of the Taliban or of anybody else if she were to return to the receiving country Pakistan.
The Tribunal notes that the delegate also considered an imputed claim raised by the migration agent, being that because of her Awan ethnicity, there is a real chance that the primary applicant would be persecuted if she returned to the receiving country Pakistan. The Tribunal notes that the delegate found no information evidencing any adverse treatment of ethnic Awan people in Karachi or throughout Pakistan. The delegate was not satisfied that the applicant faced a real chance of suffering serious harm amounting to persecution in Pakistan on the basis of being ethnic Awan. The Tribunal also accepts that the primary applicant is ethnic Awan.
Open sources suggest that people of the Awan community have a strong presence in the Pakistani Army and deserve close attention.[13] Historians have described them as valiant warriors and farmers who imposed their supremacy on their close kin the Janjuas in part of the Salt Range, and established large colonies all along the Indus to Sind, and a densely populated centre not far from Lahore. On a rural level, Awans historically were of the zamindar or landowning class and many Awan families to this day live on and cultivate land, which their ancestors have held for centuries. They often carry titles typical to Punjabis who own tracts of ancestral land. Information sought from the Department by the Tribunal indicates as follows:
[Deleted.][14]
[13] Awan (Tribe) – Wikipedia.
[14] [Deleted.]
With respect to the claim based on membership of the particular social group ‘daughters of retired wealthy businessman’, the delegate took into consideration country information which indicated that the security situation in Karachi had greatly improved and that the applicant’s father’s place of residence in [Town 3] is highly secure. The delegate took into account the totality of the evidence and was not satisfied that the applicant faced a real chance of persecution on account of being the daughter of a retired wealthy businessman in Karachi. Having made the findings in respect to the refugee criterion, the delegate went on to find that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Pakistan there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa) of the Act concerning complementary protection.
For these reasons the delegate was not satisfied the primary applicant is a person in respect of whom Australia has protection obligations, and as such the secondary applicants were also refused protection visas as members of the same family unit. The applicants were advised of the decisions on about [a date in] July 2016.
THE APPLICATION FOR AAT REVIEW
On 26 July 2016 all applicants lodged applications to the Tribunal seeking review of the delegate’s decisions. A hearing was duly scheduled for 28 April 2017 at 10 am to provide the applicants with opportunity to give evidence and present arguments relating to the issues in this case. An interpreter in the Urdu language was arranged to assist the primary applicant; an interpreter was not needed for the secondary applicant as his command of English was good.
Prior to the hearing, on or about 21 March 2017, the Tribunal received written submissions from [the] migration agents for the applicants. The Tribunal has considered the submissions and the considerable amount of supporting materials attached which included, inter alia, correspondence concerning the physical and mental health of the applicants, support statements, photographs, letters, affidavits, email statements, a proposed travel itinerary and country information.
The submissions addressed the circumstances of the primary applicant’s family living in [Town 3] in Karachi. It was submitted that the family could be evicted at any time should the governing authority choose to do so. It was further submitted that by reason of the fact authorities had chosen for them to stay despite the family having no military links, this showed that authorities in Pakistan have accepted that the family is under constant threat and have taken measures to provide the family with temporary security. It was also submitted that [Town 3] had itself become prone to attack and was not completely shielded from what occurs in Karachi and was not a safe location as the decision-maker suggested.
The Tribunal notes from the submissions that as at 21 March 2017 the debt owed to the primary applicant’s father remained unsatisfied by the [relevant government agency] and Sindh State Government. It was submitted that should the father commence court proceedings against these entities it would be certain that the family would be evicted from their premises within [Town 3]. It was submitted that the family is left in a limbo situation and unable to plan ahead.
THE TRIBUNAL HEARING ON 28 APRIL 2017
The applicant and her husband attended before the Tribunal on 28 April 2017. [Mr A] appeared as representative for the applicants. The Tribunal consented to the attendance of a counsellor to assist the primary applicant by reason of information that had been provided concerning mental health issues. The Tribunal received evidence from the primary applicant first in the absence of her husband.
Evidence of the primary applicant – [name]
The primary applicant told the Tribunal that prior to moving to Australia she had lived in Karachi her entire life, in the suburb of [name]. She left school at the end of year 12 having completed studies in [subject specialty]. Other than completing a course in the English language upon arrival in [City 1] she has completed no further studies.
She told the Tribunal her ethnic background is Awan and her religion is Sunni Islam. She continues to follow her religion privately in [City 1]. The primary applicant has never held employment. She holds no nationality or citizenship other than from Pakistan. She has no right to enter or reside in any other country.
The primary applicant confirmed that her parents, [brother] and [sister] continue to live in Karachi however she has a brother living in [Country 1] and another sister living in the Pakistan town of [Town 1]. She told the Tribunal that her brother in [Country 1] has lodged an application for asylum based upon the same circumstances that are the subject of this application, relating to the kidnapping of her father and associated threats. She accepted that Karachi is her home area; she told the Tribunal that she had never lived in any other city in Pakistan and was not familiar with other cities. It appears that all other relatives live in Karachi.
She met her husband as a child and they married in 2011 in Pakistan. As at the time of marriage her husband had been living in [City 1], Australia for over two years subject to a student visa. The primary applicant did not join him until [March] 2013. The Tribunal notes that an application for a student (dependent) visa had been applied for by the applicant [in] June 2012, some nine months earlier. She told the Tribunal that her husband was studying [an occupation] related subjects in Australia. From the date of her marriage until her arrival in Australia the primary applicant lived in Karachi with her parents and other siblings, other than her [sister].
The Tribunal enquired with the primary applicant as whether she was aware of any concerning incidents having occurred prior to February 2014, being the time of the alleged kidnapping of her father. She told the Tribunal that before the kidnapping, people were threatening the family and saying that they would kill, harm or burn the family. She confirmed that there were threats before the kidnapping but she did not know who was making the threats other than they were from an organisation. Her father was so concerned by these threats that he would not allow members of the family to go outside.
The primary applicant told the Tribunal that her father, through his [service] business, had been doing [specified] work for the Pakistani government and that the government was yet to ‘release the bill’, meaning the government had not paid for services provided. It appears that this work related to a project initiated by the government for the [specified work for] the Pakistan community. The primary applicant told the Tribunal that she believes that some of the people who had been making threats came to know about the outstanding monies due to her father from the government. She told the Tribunal that ‘the people’ wanted the money that was due to her father.
She recalled that her father’s business was running well and making a profit when she departed Pakistan, however she had very little knowledge of the operations of the business. Her father was reasonably wealthy at the time she came to Australia in 2013. The primary applicant and her husband received no financial help to come to Australia other than her family having paid for her visa and passport.
She described the situation at the time of leaving Pakistan as being an ‘ugly’ situation. Her [brother] and father were saying all the time that they were receiving threats, however it appears that there were no direct threats made to the primary applicant at any stage. She said that in the period after her marriage and before coming to [City 1] she did not go outside of her parents’ house and did not have contact with the outside world. She told the Tribunal that the initial threats received were not being reported to the authorities by her brother or her father as her father was scared about possible repercussions from these persons.
The primary applicant outlined mental health issues being experienced by both her and her husband, the treatment of which involved seeking counselling and taking medication for depression. The Tribunal has received several reports from mental health specialists that were provided through the applicant’s migration agent and accepts that both applicants had experienced, and were experiencing issues with depression and anxiety as at the date of the Tribunal hearing. The Tribunal has taken this into account when assessing the credibility of both applicants.
The Tribunal sought to clarify with the primary applicant the nature and extent of her claims. She told the Tribunal that she believes the family would not be safe in Pakistan and that nobody in that country is helping her family there who are still receiving threats. She said that her father is not working and that he is in hiding. She said that he had closed down his business office and can no longer go outside. The primary applicant told the Tribunal that persons would kill them if they returned and that they (the TTP) could do much uglier things than she could imagine. She then clarified that she was referring specifically to the Taliban.
The Tribunal enquired with the primary applicant as to why she believed the Taliban were involved and she responded that during the two months or so that her father was kidnapped he could see that his captors were Taliban and that they had said as much. She also confirmed that her [brother] had received a phone call whilst her father was kidnapped from persons who claimed to be his captors and who identified themselves as being Taliban. She said that the caller had told her brother that if the family did not give them money they would do things to her father. The primary applicant said that after the kidnapping occurred her brother had informed the police but nothing occurred; the police did no investigation at that stage. The Tribunal has viewed a copy of a report concerning the kidnapping purportedly made by the brother to [Town 2] police station on [a date in] February 2014 which has been attested, purportedly by a Karachi based advocate and notary public [named] on or about [a date in] December 2014. She confirmed that her [brother] is also not currently working and is also in hiding.
The Tribunal sought clarification from the primary applicant as to why she considered that she also could be in danger. She responded that she believed that nobody would take responsibility for her and the secondary applicants if they were to return. She said that her husband’s family do not want them to stay with them should they return. The primary applicant told the Tribunal that following her father’s release after two months of captivity he had been interviewed by officers of the Pakistan Army to see whether he could recognise the faces of his kidnappers. She claimed that her father did recognise at least one face from looking at photographs and that he identified this person to members of the Army. She claimed that somehow the Taliban had become aware of the fact of the identification and because of this, the Taliban are threatening they will kill all family members.
The primary applicant confirmed that she did not consider that her religion, being Sunni Islam, was relevant to her claims for protection. The Tribunal enquired with the applicant as to whether her Awan ethnicity was, in her view, relevant to her claims for protection. She told the Tribunal that in Pakistan people know who belongs to the Awan. She confirmed that her father was a wealthy businessman and that in Pakistan [her surname] is a name that is considered respectfully and, in the case of a male, refers to the person being [in a category]. She said that in Karachi the name is accorded respect. She said that it was easy for people to recognise who is of Awan ethnicity.
The primary applicant said that [her surname] is a widely recognised name; she acknowledged that she believed the kidnapping of her father was mainly due to an attempt to extort money, rather than her ethnic status as Awan. She clarified the answer by saying that the threats were mainly for reasons of money and the fact her father had recognised faces of the Taliban.
The Tribunal enquired as to how her family was surviving currently in Pakistan. She responded that her father was not working and that there was no job for him. She told the Tribunal her family were living in [Town 3] in Karachi and have been doing so following the kidnapping of her father. The family are living in a rental home in [Town 3] which has up to five bedrooms. She said that her [specified family members] were all living in the same house.
The Tribunal raised with the applicant the possibility of her and the secondary applicants relocating to a suitably safe area of Pakistan to which she responded that her father had tried to hide from the Taliban in another city ([Town 1]) and that somehow they (Taliban) had found out that he had done so and were able to make phone contact with him. She confirmed that the effect of the government not releasing the monies to her father for services rendered was that it caused the business not to go well. She confirmed that when she initially came to Australia the business had been operating at a profit.
The Tribunal enquired with the primary applicant as to how the ransom money had been sourced to which she responded that the family had borrowed money from [two relatives]. In addition, the family had sold the business office of her father’s business and the family car to raise the ransom. The Tribunal has sighted copies of documents relating to the sale of business premises dated [in] May 2014 and is satisfied that the documents are genuine.
The Tribunal enquired as to how it was that her father came to be released from captivity. The primary applicant responded that her brother had collected her father but she could not remember from where. In response to questioning as to who the other four kidnapped people were she said that her father did not know them prior to him being kidnapped and she did not know who these people were. In response to questioning as to how the kidnappers were able to gain contact by phone with her brother she responded that she is not sure how they knew his contact details.
The Tribunal questioned the primary applicant as to what she currently feared, bearing in mind that the kidnapping of her father occurred in February 2014, some three years prior to the hearing. She responded to the effect that the threats are still ongoing and that her life has changed to the extent she does not feel safe anymore.
In response to questioning as to where her husband had lived in Pakistan other than Abbottabad and Karachi, she responded that she did not know. In response to questioning as to the impact upon her and her family if she had to return to Pakistan and relocate, she responded that the Taliban is everywhere and not just in one place and that they are all around Pakistan. She was emphatic that they, being the Taliban, would kill her and her family.
The Tribunal summarised the claims as made by the applicant and sought a response as to whether there were further claims. She responded that every day she thinks about the situation in Pakistan and that she is so scared.
The Tribunal spoke briefly with the applicant’s representative as to the relevance of the primary applicant holding [her surname] to which he submitted that people with the name are considered to be wealthy business people. For reasons outlined below, the Tribunal accepts that people with [her surname] could, in some circumstances, be imputed as being wealthy persons by reason of their surname and their Awan ethnic background. For reasons outlined, however, the Tribunal is not satisfied that this would result in either a real chance or real risk of the applicant or her immediate family (husband and child) suffering either serious or significant harm.
The representative confirmed to the Tribunal that the investigation into the kidnapping and threats is still an ongoing one and this is the reason that the family are living in [Town 3]. He confirmed the family does not leave the area and that it is a secure area which was arranged for the family by police or the army. He indicated that it was a military [area] and that in time the family will be asked to leave. He confirmed that it contains essential services including medical services and shops and that it is a secure [area]. Notwithstanding, the representative confirmed that there had been attacks within the [town].
Evidence of the secondary applicant – [name]
The Tribunal received evidence from the secondary applicant [named] who confirmed that the investigation into the kidnapping was still ongoing and it was being conducted by police in [Town 2]. He said that the police in Pakistan don’t deal with these cases straightaway but they had started an investigation. He confirmed that his wife’s family were in witness protection for the time being. He confirmed that his father-in-law was paying rent to enable the family to stay within [Town 3].
He told the Tribunal that his father-in-law had recognised the face of one of the Taliban and the name of this person was [Mr B], whom he described as a Taliban commander. Open media sources accessed by the Tribunal indicate that [Mr B] was a Taliban Commander that was allegedly killed in a skirmish with authorities in [year].[15]
[15] [Deleted.]
The secondary applicant confirmed that he possesses [two qualifications] obtained whilst living in Pakistan. The Tribunal enquired with him as to what he considered his job prospects would be if he returned to Pakistan to which he responded that he believed he would be able to get work in the retail and business sectors in Pakistan. He told the Tribunal it would be very difficult for the family to relocate and dangerous for the children. He said that the area he comes from is not far from where US forces located and killed Osama Bin Laden.
He told the Tribunal that he believes that his wife’s family is planning to move overseas and that there is currently a plan to come to Australia, possibly to [one of two cities]. He said the family finds life in [Town 3] is like being in a prison and that his wife’s family don’t want to live there much longer.
The Tribunal enquired with the secondary applicant as to how it could be that the Taliban were able to obtain phone contact details so as to contact his brother-in-law and father-in-law to which he responded that his father-in-law must have provided details to them.
RESPONSES TO COUNTRY INFORMATION
On 4 May 2017 the Tribunal wrote to the applicant’s migration agent [Mr A] to invite comment on, or response to, information that the Tribunal considered would, subject to any comments or responses, be the reason or part of the reason for affirming the decisions under review. The Tribunal enclosed a copy of the then most recent DFAT report concerning Pakistan which was dated 15 January 2016.
The Tribunal invited comment or response to specific paragraphs in the report, being paragraphs 2.15, 2.16, 2.30, 2.31, 3.62, 5.18 to 5.21 inclusive, and paragraph 5.23. This information was not specifically put to the applicants during the Tribunal hearing. The paragraphs are as follows:
2.15 Health care in Pakistan is generally free and accessible to all Pakistanis. However, the health care system suffers from a lack of funding and limited capacity. Under the 18th Amendment to the Constitution passed in 2010, provincial governments are responsible for health care.
2.16 Health care services vary between urban and rural areas because of difficulties associated with access and infrastructure in remote locations. Although private health care providers generally provide better quality health services, access to these services is limited by their higher costs. Many religious (Islamic and Christian) and secular charities also provide emergency relief, education, health and other services. Generally, these services focus on the specific needs of their community or sect.
2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence. The level of violence is greater in Sindh, Balochistan, Khyber Pakhtunkhwa and the FATA, and varies depending on the location of Pakistan military operations. Urban centres also tend to be more secure than rural areas (see ‘Internal Relocation’ below), with the exception of Karachi. This includes ‘cantonments,’ or secured areas, although militant groups have also specifically targeted t these areas.
2.31 Organised and violent crime, such as robbery and kidnapping for ransom, occurs throughout Pakistan. This is exacerbated by the proliferation of licenced and un-licenced small arms in Pakistan. According to the United Nations Office on Drugs and Crime, Pakistan’s homicide rate was the highest in South Asia in 2012 (7.7 per 100,000 people). While exact figures are not available, Operation Zarb-e- Azb, which has expanded to encompass paramilitary Ranger operations in Karachi, has substantially reduced the level of serious crime – including homicide – throughout Pakistan.
3.62 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship) and western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.
5.18 Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.
5.19 The population of Lahore grew from 6.3 million people in 1998 to almost 10 million people in 2014. Compared to many other cities in Pakistan, Lahore remains relatively ethnically homogenous and is majority Punjabi. However, the city’s demographics continue to change with ongoing internal migration processes. Approximately one million Pashtuns have migrated to Lahore since the 1980s, for example. The security situation in Lahore remains better than many other places in Pakistan, with lower levels of generalised and sectarian violence than many other major population centres. The Pashtun community in Lahore has told DFAT its members feel safe and do not feel threatened by sectarian violence. Shias in Lahore have similarly told DFAT the security situation has improved because of Operation Zarb-e- Azb.
5.20 The population of Islamabad grew from around 800,000 at the time of the 1998 census to almost two million in 2011. Founded in the 1960s, Islamabad has a relatively high population of internal migrants, many from conflict-affected areas in FATA, Khyber Pakhtunkhwa and Balochistan. There are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within the capital. These provide a strong deterrent to militant groups planning attacks in the capital by increasing the risk of detection. Paramilitary Rangers also continue to patrol streets throughout Islamabad, having been deployed throughout the city in April 2014.
5.21 Transportation costs and the higher costs of living in larger cities can operate as a barrier to internal relocation, although they can be offset by higher wages typically received in these locations. However, there are a range of accommodation options in cities like Karachi, Lahore and Islamabad and no evidence to indicate any accommodation shortages.
5.23 In practice, returnees generally leave Pakistan for interim destinations on valid travel documents and consequently do not commit immigration offences. Those who return voluntarily with their own, valid travel documents are processed like any other Pakistani citizen returning to Pakistan. Only those who return involuntarily, on charter flights, or who have emergency travel documents are likely come to the attention of authorities at airports. This includes involuntary returnees from the Gulf states, who are often victims of trafficking or labourers and workers whose visa status has changed because of local policies in these countries.
A response to the 4 May 2017 letter
On 15 May 2017 the Tribunal received further written submissions from the migration [agent]. In the submissions it was confirmed that the primary applicant’s father was willing to provide oral evidence to the Tribunal and phone contact details were provided.
The Tribunal did not subsequently arrange for the primary applicant’s father to be contacted during the hearing because it was able to make findings of fact concerning matters upon which it would be reasonably anticipated that the witness would testify. These issues included:
(a)[The applicant’s father’s] business interests and its involvement in a dispute with the Pakistan government concerning a [specified work] contract;
(b)The fact [her father] was wealthy (relatively) at or about the point in time that extremist groups were seeking to extort monies and when he was kidnapped;
(c)What occurred to [her father] concerning his kidnapping and that he was held for up to two months;
(d)How he came to be released by his kidnappers;
(e)Steps taken by him to relocate the family in Pakistan in [Town 3].
It was submitted that militant activities are present all over Pakistan and no area is immune to those activities, including the state of Punjab. It was submitted that the applicants would not be able to relocate as the threat is state-wide and militants have an extensive communication network across state and national borders to track victim’s movements. It was submitted that it would be a real issue for the applicants to find safe housing as they do not know for how much longer their family will be able to reside within [Town 3] in Karachi. Included within the submission was country information including several articles, upon which it was submitted, show an increasing Taliban presence in Punjab province. It was submitted that the father’s kidnapping is directly related to militant activities as opposed to petty criminal gang activity. The representative submitted that militants have access to high power firearms and ammunition and are capable of carrying out their missions with destructive force. It was submitted that arms are being smuggled across the border from Afghanistan and that many militant groups within Pakistan carry out missions with direct instruction from Afghanistan.
It was submitted that whilst medical treatment is available in Pakistan access to it will be difficult for the primary applicant as the applicant’s [child] would have to leave [Town 3] area to access services, placing their lives at risk of kidnapping. Further, it was submitted that the public hospital services in Pakistan are grossly neglected and underfunded by the government. Whilst private medical services will be available, the applicant and her [child] would need to leave the safe surrounds of [their residential area] to avail themselves of services. The Tribunal notes, however, that there is a [hospital] operating within [Town 3] itself which offers a broad range of medical services, including physiotherapy, psychiatry and psychology and paediatrics.[16] Based on this information it would appear unlikely that the applicant and her family would necessarily need to leave [Town 3] should they decide to return to live in that area.
[16] [Deleted.]
References were made to increased incidents of bombing of hospitals, medical facilities and schools. Further reference was made to a bombing of a hospital in Quetta in August 2016 during which 72 persons were killed and that the Taliban and Lashkar-e-Jhangvi (LeJ) continue to target medical facilities all over Pakistan.
It was further submitted that in relation to paragraph 3.62 of the DFAT report, this was not as great a threat or consideration for the applicants than the other claims. It was submitted that Pakistani’s who come from abroad with money are targeted but that the applicant does not fall under this category. It was submitted that the money that the applicant’s family has (or has access to) is what ‘activates the threats’. The representative commented that the militants know that one day the primary applicant’s father will be paid either in full or on an instalment basis and therefore the threat is a continuous one. It was submitted that militant organisations fund their operations through kidnapping, extortion and ransom and that the applicant’s family have been a direct victim of this. The Tribunal does not find this submission to be particularly compelling in the sense that it would be very unlikely that the militant group involved in the kidnapping of [the applicant’s father] would, in effect, patiently await the receipt of monies by [him] over several years. In this sense, the Tribunal does not consider the threat to [the applicant’s father] to be continuous.
FOOTAGE PROVIDED BY THE APPLICANTS TO THE DEPARTMENT
The Tribunal was provided with a USB upon which were two brief videos purporting to show the primary applicant’s father communicating with his family during the period he was kidnapped. The Tribunal has viewed both videos and is satisfied that the elderly male depicted in the video footage is in fact the father of the primary applicant. The Tribunal notes that the first video appears to show two unidentified persons armed with firearms pointed in a menacing manner toward the applicant’s father. The Tribunal is unable to determine if the firearms are real or fake.
FURTHER COUNTRY INFORMATION – THE DEPARTMENT, DFAT AND UK HOME OFFICE
Subsequent to the Tribunal hearing DFAT updated its report upon Pakistan. Information of potential relevance to this review application is attached at the rear of this decision. Information of relevance has also been sourced from the UK Home Office and is also attached.
The Tribunal has accessed a ‘question and answer’ response from the Department dated [in] 2016 which appears to have been prepared in response to a request from the Department case officer in assessing this particular matter. The departmental response indicated that a search of sources did not uncover any reports of any wealthy businessman having being kidnapped in February 2014 in Karachi. However, kidnapping for ransom was considered to be ‘common’ at that time. The response further provided as follows:
[Deleted.][17]
[17] [Deleted.]
Within the mentioned question and answer response from the department was information specific to the security information in [Town 3] and Karachi generally, being as follows:
[Deleted.]
FURTHER SUBMISSIONS RECEIVED ON 10 JANUARY 2018
The Tribunal received further written submissions from [the migration agent] on 10 January 2018 which confirmed a diagnosis of [a condition] for the applicant’s [child] and included further open sourced country information relating to the presence of a ‘[criminal group]’ in Pakistan and difficulties anticipated in seeking treatment of the applicant’s [child] should the family live in the [Town 3] area. Those submissions have been duly taken into consideration by the Tribunal. For reasons outlined above, the Tribunal considers that the applicant’s child will have access to paediatric services within [Town 3] should the family locate themselves in that area.
ASSESSMENT OF CREDIBILITY AND FINDINGS OF FACT
The Tribunal has carefully considered the evidence of the primary and secondary applicant in conjunction with the information located on the departmental file and information submitted to the Tribunal.
The Tribunal found the primary applicant to be somewhat devoid of emotion whilst giving evidence and particularly whilst outlining her fears for both herself and her family. The Tribunal is aware however that the primary applicant was being treated for depression and anxiety up to and at the point of the hearing; it was also made known to the Tribunal that the primary applicant was being medicated for these conditions. In the circumstances the Tribunal makes no adverse assessment based upon the primary applicant’s presentation during the hearing.
It appeared to the Tribunal that the primary applicant was making a genuine attempt to recall events, and whilst there were some omissions between her initial claims to the Department and her evidence to the Tribunal, these were not of significance. Such omissions were primarily as to detail rather than as to the occurrence of events. The Tribunal found the primary applicant to be a generally credible witness with respect to the claims she had made.
In relation to the [secondary applicant], he displayed considerably more feeling and emotion whilst testifying, to the extent that he broke down in tears when recalling the stress that the family continued to be under. The Tribunal assessed this display of emotion as being genuine. He was able to provide additional detail to the Tribunal that was not evident from the evidence of his wife, the primary applicant. He told the tribunal that the person identified by his father-in-law as being one of the kidnappers was in fact [Mr B], a Taliban commander of some notoriety. The Tribunal notes that [Mr B] was killed by Pakistan authorities in [2014], being about [period] after the kidnapping.
The secondary applicant acknowledged that in the event that he returned to Pakistan it would be likely that he would be able to secure work in either the retail or business sectors, a response which the Tribunal considers to be an honest concession. There was nothing evident in the evidence of the secondary applicant which cause the Tribunal to doubt his credibility and honesty. The Tribunal identified no particular conflicts between the evidence of the primary and secondary applicant; both appeared to be genuinely attempting to recall key events to the best of their abilities. The Tribunal notes that the delegate found the evidence of the primary applicant and secondary applicant to be fairly consistent; the husband recalled his experiences and the details of what he was told with sufficient detail. To the delegate, the applicant appeared genuinely distressed when recalling her father’s kidnapping.
The Tribunal has considered all of the information and evidence, both individually and collectively and is in a position to make the following factual findings in this matter:
a)the primary applicant and secondary applicant married in Abbottabad, Pakistan in 2011, at a point in time that the secondary applicant had been residing in Australia for about two years;
b)whilst awaiting the granting of her visa, the primary applicant lived with her parents and family in Karachi. During this period issues arose concerning a contract involving her father’s business [of specified work] to a Pakistan government entity. The exact amount of the outstanding debt is unclear, however, it is accepted that the debt is significant;
c)by means unknown, persons not involved in the dispute became aware of the existence of the debt owed to the father’s business by the government;
d)between 2011 and 2013 the primary applicant became aware of threats having been received by her father and [brother] that were related to attempts to extort monies arising from repayments to the business; these threats were directed to the family at large;
e)the primary applicant departed Pakistan for Australia [in] March 2013 pursuant to a student dependent [visa]. She has not returned to Pakistan;
f)on or about [a date in] February 2014 the father of the primary applicant was kidnapped and held for a period of about two months in [a specified] area of Balochistan;
g)the Tribunal accepts that the kidnappers were members of an extremist group and that it is quite plausible that the group is aligned to the Pakistani Taliban, the TTP. Country information sighted by the Tribunal in assessing this matter indicates that the actions of the kidnappers are consistent with the modus operandi of the TTP in Pakistan at the time;
h)on the day of the kidnapping, being [in] February 2014, the [brother] of the primary applicant reported the facts of the kidnapping to local Pakistan police;
i)the Tribunal accepts that the two videos sent to the applicant’s family are of her father as she claims and that they were taken between about mid-February and April 2014 as a means to secure ransom money from the applicant’s family;
j)an amount of money was arranged by the primary applicant’s [brother] and paid to the kidnappers to secure the father’s release in about April 2014;
k)following the release of the father, further contact was made by the kidnappers with the primary applicant’s [brother], which involved threats to kill or harm the family at large, to secure further money. An unknown amount of money was again paid although the means by which it was paid are unclear;
l)consequent upon the second approach to extort money, the primary applicant’s father commenced action to relocate the family into a more secure situation, being [Town 3], where the family remains as at the date of decision. The Tribunal accepts that the applicant’s father has sold his business office and has now retired from the business;
m)the Tribunal accepts that [Town 3] provides a far greater level of security than would be generally available in the Karachi area. The Tribunal also accepts that the ability of the family to continue renting within [Town 3] is dependent upon the approval of the [local authorities] and the Pakistan Army. The Tribunal notes, however, that the family have now been living [in Town 3] for over three and a half years and that there is nothing to suggest that they have been requested to relocate either now, or in the reasonably foreseeable future. The Tribunal does not accept that the family would be forced to leave or be evicted by reason of the applicant’s father commencing court proceedings against the government or government authorities. The applicant’s father has been pursuing the alleged debt for several years to date and there is no suggestion that the [local authorities have] exerted any pressure upon the family to leave.
n)the Tribunal accepts that the primary applicant considered returning to Karachi to see her family in about September 2014, intending to return two months later to Australia. This travel did not eventuate and the Tribunal accepts that this was because of warnings from the applicant’s family. The Tribunal also accepts that the primary applicant intended to return to Pakistan to have her baby but did not do so because of concerns as to safety;
o)there are no indications that the primary applicant or secondary applicants have, to date, been the subject of any direct threats.
CONSIDERATIONS AND FINDINGS AS TO PROTECTION CLAIMS UNDER s.36(2)(A) OF THE ACT
Is the applicant a ‘refugee’ for the purposes of s.5H of the Act?
A person will be a refugee if they have a ‘nationality’ and 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. The Tribunal finds that the primary applicant is a citizen and national of Pakistan and is presently outside of her country of nationality.
Does the applicant have a ‘well-founded’ fear of persecution?
Pursuant to s.5J(1) of the Act the primary applicant will have a ‘well-founded fear of persecution’ if:
a)she 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 she returned to the receiving country (Pakistan), she would be persecuted for one of more of the reasons mentioned in paragraph (a) above; and
c)the real chance of persecution relates to all areas of the receiving country Pakistan.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Section 5J(4) of the Act provides that a person will not have been persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion unless:
a)that reason is the essential and significant reason or those reasons are the essential and significant reasons for the persecution; and
b)the persecution involves serious harm to the person; and
c)the persecution involves systematic and discriminatory conduct which will normally exclude laws of general application.
The applicant’s claims can be found within her statutory declaration lodged with her initial application, materials within the departmental file, the written submissions of the migration [representatives] and within evidence provided to the Tribunal. The Tribunal considers that the claims are, in essence, fundamentally directed toward fear of persecution based upon the following s.5J(1)(a) reasons:
a)Membership of a particular social group – fear of persecution in Pakistan for reason of being a member of a particular social group, being ‘family members of wealthy business people’;
b)Membership of a particular social group – fear of persecution in Pakistan for reason of being a member of a particular social group, being ‘family members of persons who have reported extremist groups to authorities’, including the Pakistan Taliban;
c)Imputed membership of a particular social group – an imputed fear of persecution in Pakistan for reason of being a ‘returnee to Pakistan from a western country’; and
d)Membership of a particular social group – fear of persecution in Pakistan for reason of being of Awan ethnicity.
Does the applicant fear persecution?
The question of whether an applicant holds a subjective and genuinely held fear of persecution is a question of fact to be determined by the Tribunal on assessment of all of the evidence.
With respect to the claim based upon the Awan ethnicity of the primary applicant, there is no evidence before the Tribunal, and nor is there any country information supporting any claim that the primary applicant faces a real chance of persecution involving serious harm by reason of her being ethnically Awan. Whilst the Tribunal accepts that persons of Awan ethnicity may be viewed in Pakistan, and particularly in the Karachi area, as respected persons with likely business involvements, there is no basis upon which the Tribunal could find her Awan ethnicity to have been relevant to persecution of her family in Pakistan in the past or in the future. As such, the Tribunal discounts the Awan ethnicity of the primary applicant as being relevant to its considerations.
The Tribunal accepts that the other reasons are the ‘essential and significant reasons’ for the persecution as allegedly feared by the primary applicant. The persecution relates to the applicant fearing that her family in Australia and her Pakistan family will be subject to violence and potentially death by an extremist group, possibly the Pakistan TTP, should they return to Pakistan. In the circumstances, the Tribunal is satisfied that these ‘outcomes’ as feared by the applicant would amount to ‘serious harm’ for the purposes of ss.5J(5)(a), (b) or (c) of the Act.
The Tribunal is satisfied that the persecution as claimed by the applicant involves ‘systematic and discriminatory conduct’ for the purposes of s.5J(4)(c) of the Act in that it concerns selective harassment of the primary applicant in Pakistan on the basis of memberships of the particular social groups. The Tribunal notes that fear of a single act of harm done for a reason as set out in s.5J(1)(a) will be sufficient ‘if it is so oppressive that an individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person’.[18]
[18] See Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 at [99] per McHugh J.
Having considered the evidence before the Tribunal individually and cumulatively, the Tribunal accepts that the primary applicant does have a genuine subjectively held fear of persecution for the reasons of her memberships of the identified particular social groups.
Is there a ‘real chance’ that, if the applicant returned to the receiving country (Pakistan), she would be persecuted for one of more of the reasons in s.5J(1) of the Act?
In the circumstances, the Tribunal finds that there is not a ‘real chance’ that the applicant would be persecuted for reasons of her memberships of the identified particular social groups should she return to her home area, being Karachi and its near areas. As a consequence, the Tribunal is not satisfied that the primary applicant has a well-founded fear of persecution in her home country Pakistan. The Tribunal finds that she is not a refugee for the purposes of s.5H of the Act and that the applicant is not a person in respect of whom Australia has protection obligations as a refugee in accordance with s.36(2)(a).
COMPLEMENTARY PROTECTION
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).
As with claims under the refugee criterion, the first issue to be determined for claims under s.36(2)(aa) will generally be the country of reference. The criterion in s.36(2)(aa) refers to a risk of harm as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a ‘receiving country’. The Tribunal finds the receiving country to be Pakistan.
In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well- founded fear'. For the same reasons as already canvassed the Tribunal is not satisfied that there is a real chance that the primary applicant would be persecuted if she returned to Pakistan, the Tribunal is also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Pakistan, that there is a real risk she will suffer significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. As a consequence, the applications for protection visas by the two secondary applicants [named] (husband) and [name] (child) on the basis of membership of the family unit of the primary applicant are not satisfied.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in ss.36(2)(a) or (aa) for a protection visa. It also follows that they are unable to satisfy the criterion set out in ss.36(2)(b) or (c), and cannot be granted the visas.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Michael Judd
MemberATTACHMENT - 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.
…
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 them 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
…
(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.
ATTACHMENT – EXERPTS FROM DFAT COUNTRY INFORMATION REPORT (PAKISTAN) 2017
2.3: Pakistan is divided into four provinces: Sindh, Punjab, Khyber Pakhtunkhwa (formerly the North-West Frontier province) and Balochistan. The capital, Islamabad, is a special Federal Capital Territory. The federal government also administers seven tribal agencies: Bajaur, Khyber, Mohmand, Kurram, Orakzai, and North and South Waziristan, collectively known as the Federally Administered Tribal Areas (FATA). Pakistan administers approximately one-third of the area of the former princely states of Jammu and Kashmir and Gilgit-Baltistan—also known as the ‘Northern Areas’ of Pakistan—which have a quasi- provincial status and are not represented in the national parliament. These areas have their own elected parliaments and governments.
The 1998 population census is the latest census in Pakistan for which results are available; the census originally scheduled for 2008 was repeatedly postponed. The results of a census conducted in 2017 are not yet available. The UN Department for Economic and Social Affairs (UN DESA) estimates Pakistan’s population in 2016 to be around 193 million people. The population is young, fast-growing and rapidly urbanising. UN DESA estimates that around 55 per cent of the population is under 25 years of age, and only around 13 per cent are over the age of 50. The sixth-most populous country in the world, Pakistan has an annual population growth rate of around 1.45 per cent. An estimated 20-24 million people live in Karachi, Pakistan’s most populous city.
Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse. Punjabis form the largest ethnic group (45 per cent), followed by Pashtuns (15 per cent), Sindhis (14 per cent) and Seraikis (8 per cent). There are also smaller ethnic groups of Mohajir (Urdu-speaking immigrants from India, 7.5 per cent), Baloch (3.5 per cent), and
Hazara (less than one per cent). Urdu and English both have status as official languages and are the languages of instruction in most schools. However, only around eight per cent of the population speaks Urdu as a first language. While English is the language of business and politics, few Pakistanis speak English as their first language. Punjabi and Serakai (a variant of Punjabi), Sindhi, Pashto, Balochi and Brahui are major regional languages. With the exception of large urban centres, many Pakistanis tend to live in ethnically homogenous communities.
The Pakistani diaspora is significant, including in Saudi Arabia, India, the United Arab Emirates, the United States and the United Kingdom. According to the United Nations 2015 Migration Report, around six million Pakistanis live outside of Pakistan. Many Pakistanis travel abroad to undertake tertiary education, including to Australia, Sweden, the United Arab Emirates, United Kingdom and United States.
Healthcare in Pakistan is generally free and accessible to all Pakistanis, but the quality of healthcare often suffers from a lack of funding and limited capacity. The maternal mortality ratio is around 260 per 100,000 live births, one of the highest in the region. The infant mortality rate is around 66 deaths per 1,000 live births, similar to levels seen across sub-Saharan Africa. Life expectancy at birth is around 66 years. Pakistan is one of three countries in the world (with Afghanistan and Nigeria) where transmission of wild poliovirus continues to occur.
Under the 18th Amendment to the Constitution, passed in 2010, provincial governments are responsible for healthcare. Health care services vary between urban and rural areas because of difficulties associated with access and infrastructure in remote locations. While private healthcare providers tend to provide better quality services, access to these services is limited by their higher costs. Many religious (Islamic and Christian) and secular charities also provide emergency relief, education and health services. These groups generally focus on the specific needs of their community or sect.
Section 25A of Pakistan’s Constitution states that the ‘State shall provide free and compulsory education to all children of the age of five to sixteen years’. Under the 18th Amendment to the Constitution, provincial governments are responsible for providing education services.
Education outcomes in Pakistan tend to be poorer than those of other countries in the region. Around 55 per cent of Pakistani adults are literate, compared with around 72 per cent in India and 62 per cent in Bangladesh. An estimated 43 per cent of adult Pakistani women are literate. The net enrolment rate at the primary school level is around 73 per cent, but falls to around 41 per cent at the secondary school level.
While tertiary level entrance is generally awarded on merit, some quotas are reserved for students from rural and underdeveloped areas.
Funding remains a major constraint for Pakistan’s education sector. Education opportunities tend to be better in large urban centres than in rural areas. In some cases, private education institutions operate in the absence of public education institutions. Security issues can also hamper educational progress, with militant groups sometimes conducting attacks on schools. One faction of the militant group Tehreek-e Taliban Pakistan (TTP) announced in January 2016 that it would target schools, colleges and universities with violent attacks. The message came two days after militants attacked the Bacha Khan University near Peshawar in Khyber Pakhtunkhwa province, killing 21 people. According to the Federally Administered Tribal Areas (FATA) Secretariat, more than 550 schools have been attacked since 2004 in the FATA alone.
Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Sindh province is also relatively free from major terrorist activity outside of Karachi, although rural Sindh has a high incidence of crime and kidnapping and some large-scale terrorist attacks have occurred in rural Sindh. Gilgit-Baltistan tends to experience less sectarian violence, in part because of its relatively sparse population and mountainous terrain, and its status as the only Shi’a-majority area in Pakistan. In contrast, Balochistan, Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence.
In June 2014, the Pakistan Armed Forces launched Operation Zarb-e-Azb, a major offensive against terrorist groups across the country. Operation Zarb-e-Azb initially targeted terrorist groups in North Waziristan in the FATA , including the Tehreek-e Taliban Pakistan (the Pakistani Taliban or TTP), and gradually spread to other parts of FATA and Khyber Pakhtunkhwa province, with smaller, intelligence- based operations taking place across the country. The term Zarb-e-Azb has also expanded to refer to operations by the army and the Rangers, a paramilitary security force, in Balochistan and Karachi against various other terrorist, separatist and criminal groups. The operation reportedly resulted in the deaths of 3,500 suspected terrorists and 490 military personnel during its first two years.
In December 2014, an attack on a school in Peshawar resulted in the deaths of 140 people, including 132 children. The attack led to the government introducing a National Action Plan (NAP), which, along with Operation Zarb-e-Azb, forms a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. Among other measures, the NAP: ended Pakistan’s unofficial moratorium on the death penalty; established military courts to try suspected militants; clamped down on sources of finance for militant organisations; took measures to restrict hate speech; and committed to implementing administrative and development policy reforms, particularly in the FATA.
Operation Zarb-e-Azb and the NAP are credited with a significant reduction in the number of violent attacks in Pakistan. According to the South Asian Terrorism Portal, more than 600 civilians and 290 security force personnel were killed in terrorist incidents in 2016, down from more than 3,000 civilians and 676 security force personnel in 2013. Civilian fatalities from terrorism over the first 5 months of 2017 were similar to the same period in 2016, with several terrorism-related incidents killing around 270 civilians. More than 20,000 civilians have died in terrorism-related violence since 2007. These statistics largely derive from news reports, and may understate the number of casualties.
The government and military operations have disrupted the activities of militant groups and thousands of militants have been killed, including the high-profile leader of Lashkar-e Jhangvi (LeJ), Malik Ishaq, in 2015. Military courts have tried and convicted thousands of people with links to terrorist organisations. However, militant groups remain active across Pakistan, despite their more limited access to former safe- havens in Khyber Pakhtunkhwa and North Waziristan. These groups continue to attack government and sectarian targets. Groups such as the TTP have splintered into several offshoot organisations; while this means that these groups are smaller and their capacity for cohesive campaigns of coordinated attacks has been reduced, it also means there are a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats.
Operation Zarb-e-Azb initially led to the displacement of around 1.6 million civilians, primarily in FATA and Khyber Pakhtunkhwa. According to the UN Refugee Agency (UNHCR), there are around 750,000 registered internally displaced persons (IDPs) in Pakistan, the vast majority of whom are living in host communities (less than one per cent are living in camps). DFAT understands that large numbers of IDPs have returned to their villages following the improvements to the security situation, although there are credible reports of houses and cropland having been destroyed in the fighting. Operation Zarb-e-Azb continues to restrict people’s movement in and around the FATA and western Khyber Pakhtunkhwa. While designed to hamper the mobility of militants, it also has a significant impact on the ability of the local populations to access services, livelihoods and markets.
Several interlocutors in Pakistan told DFAT that the underlying conditions for militancy—particularly weak judicial and law enforcement institutions and economic under-development—have not been addressed, and speculated that violence would likely increase again after a period of relative calm.
DFAT notes that there has been an increase in the frequency and severity of terrorist attacks across Pakistan since late 2016. Between 13 and 16 February 2017, a series of separate incidents in Lahore (Punjab province), Quetta (Balochistan province), Peshawar (Khyber Pakhtunkhwa province) and Sehwan (Sindh province) killed at least 100 people and left several hundred others injured. In response to these attacks, on 22February, 2017, the Pakistan Army announced Operation Radd-ul-Fasaad (the successor to Operation Zarb-e-Azb), a nation-wide anti-terrorism operation in accordance with the NAP, which has expanded the role of the army in counter-terrorism operations in Punjab province. Attacks continue to occur, such as a suicide attack targeting police in Lahore on 24 July 2017, which killed 26 people and injured more than 50 others.
As well as targeting insurgent and sectarian groups, government and military crackdowns have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. The Rangers, a paramilitary security force, have arrested large numbers of people allegedly involved in kidnapping, robbery and extortion in Karachi. Included among those arrested and detained are several thousand members of the Muttahida Qaumi Movement (MQM; see Political Opinion (Actual or imputed), below). Most of those arrested are detained for a period of around 90 days, before being released. There are widespread accusations of torture, as well as reports of dozens of extrajudicial killings and enforced disappearances. While reliable data are unavailable, DFAT understands that serious crime across Pakistan has reduced significantly since the commencement of Operation Zarb-e-Azb and the NAP, including in Karachi.
Militant groups such as Tehreek-e Taliban Pakistan (TTP) and Lashkar-e Jhangvi (LeJ) continue to operate across Pakistan despite government and military operations disrupting their activities. The TTP— effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into a number of separate groups following the beginning of the crackdown. In early 2017, a number of these splinter groups re-joined the TTP, however, or pledged support for its leader, Mullah Fazlullah. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned.
The terrorist group known as Islamic State is active in Pakistan, but it is unclear how much direct influence it wields. On 8 August 2016, around 70 civilians—predominantly from the legal community— died in a suicide bombing in the emergency ward of a Quetta hospital. Large numbers of people had gathered at the hospital to mourn the death of Balochistan Bar Association president Bilal Anwar Kasi, who had been murdered earlier that day in an apparent targeted killing. Islamic State and a faction of the TTP both claimed responsibility for the bombing. Islamic State and LeJ al-Alami both claimed responsibility for an attack in October 2016 on a police training college in Quetta, Balochistan, in which 59 people died. Islamic State has claimed responsibility for other attacks, including two on Sufi shrines: one in south-west Balochistan on 12 November 2016, which killed 52 people and injured around 100; and a second in Sindh province in February 2017, which killed at least 88 people and injured several hundred others. It is unclear the extent to which Islamic State is directly funding or commanding violent attacks in Pakistan, or whether the attacks claimed by Islamic State were conducted by other militant groups motivated by shared ideological goals.
In addition to insurgent terrorist groups, Pakistan is subject to violent attacks from militant separatist organisations, most prominently in Balochistan province. On 6 October 2016 Baloch separatists caused two explosions on a passenger train in south-west Balochistan. The Baloch Liberation Army (BLA) claimed responsibility for the attack, which targeted military personnel on the train. The attack killed six people. Baloch separatist groups have been known to attack military and economic infrastructure, including the overland infrastructure network built under the China-Pakistan Economic Corridor agreements. Violent attacks by separatist groups have become less frequent since the beginning of Operation Zarb-e-Azb and the National Action Plan, although they continue to occur. On 13 May 2017 suspected BLA militants reportedly killed 10 labourers and injured two others on a China-Pakistan Economic Corridor construction site in Gwadar.
Several Sunni militant groups operate throughout Pakistan, including the TTP, LeJ (and factional sub- groups such as LeJ al-Alami), Sipah-e-Sahaba Pakistan (SSP, also known as Ahle Sunnat Wal Jamaat or ASWJ) and Jaish-e Mohammad (JeM). All of these groups are banned by the Pakistan government but continue to operate illegally across Pakistan. DFAT assesses that sectarian violence disproportionately affects minority religious groups across the country.
Shi’a militant groups such as Sipah-e-Mohammad Pakistan (SMP) have attacked Sunnis, although Shi’a militancy has declined overall as the general security situation in Pakistan has improved. SMP reportedly acts primarily in Punjab province to attack Sunni militant groups such as LeJ and SSP. SMP was responsible for targeted killings of Sunnis in Karachi and Quetta in 2014. DFAT is not aware of any major attacks by SMP or other significant Shi’a militant organisations in recent years, although Shi’a have committed targeted killings of suspected Sunni militants.
The frequency of sectarian attacks has reduced significantly in recent years. The South Asia Terrorism Portal (SATP) reports that 35 incidents of sectarian violence killed 137 people during 2016, compared with 131 incidents and 558 deaths in 2013. The Pak Institute of Peace Studies assesses that around eight per cent of attacks carried out by militant groups in 2016 were sectarian in nature.
In the first six months of 2017, at least 11 incidents of sectarian violence reportedly killed around 220 people across Pakistan. This includes the aforementioned attack at a Sufi shrine in Sindh province, which killed at least 88 people and injured several hundred others, as well as three separate attacks targeting Shi’a in Parachinar, Kurrum Agency, which killed more than 120 people.
In practice, ethnicity has been a source of communal tension throughout Pakistan’s history. The steady migration of Pashtuns from Khyber Pakhtunkhwa and the Federally Administered Tribal Areas (FATA) to Karachi has reportedly contributed to violence between the armed wings of major political parties, including the Mohajir-based Muttahida Qaumi Movement (MQM), the Sindhi-based Pakistan People’s Party (PPP), the Pashtun-based Awami National Party (ANP), and the Sunni militant group Tehreek-e Taliban Pakistan (TTP). In Balochistan, separatist groups such as the Baloch Liberation Army (BLA) have targeted and killed ethnic Punjabi settlers and others as part of their campaign for independence.
Sectarian Violence
Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools. Shi’a continue to face a threat from anti-Shi’a militant groups, including Lashkar-e Jhangvi (LeJ), Sipah-e-Sahaba Pakistan (SSP, also known as Ahl-e-Sunnat-Wal-Jamaat or ASWJ), and various factions of the Tehreek-e-Taliban Pakistan (the Pakistani Taliban, or TTP). Sectarian violence has reduced significantly in recent years, particularly since Operation Zarb-e-Azb (and its successor, Operation Radd ul Fasaad) and the NAP were implemented. According to the Center for Research and Security Studies (CRSS), fatalities from sectarian violence fell by 20 per cent in 2016, following a 28 per cent drop in 2015 and a 32 per cent drop in 2014.
While sectarian violence affects people of all religions and sects, Shi’a have traditionally represented a higher proportion of the casualties. According to the CRSS, Shi’a made up around 60 per cent of the people killed in sectarian violence in Pakistan in 2015, despite making up only around 15-20 per cent of Pakistan’s population. In 2016, however, Shi’a made up fewer than 15 per cent of those killed in sectarian violence. The two biggest attacks of the year—an attack targeting Christians in Lahore on Easter Sunday and an attack on a Sufi Shrine in Balochistan— did not target Shi’a. This fact, combined with a significant decrease in overall sectarian violence across the country, meant that Shi’a comprised a relatively small proportion of the total victims of sectarian violence. Around 820 Shi’a have been killed in sectarian violence since the beginning of 2013, out of a total Pakistani Shi’a population of about 30 million people.
LeJ and its sub-groups such as LeJ al-Alami tend to be the main perpetrators of violence against Shi’a in Pakistan. The LeJ is a collection of loosely coordinated cells linked to other militant groups such as the TTP and, more recently, Islamic State. Originally based in Punjab province as an offshoot of Sipah-e- Sahaba Pakistan (SSP), the LeJ’s reported objective is to establish an Islamist Sunni state in Pakistan. It also seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
The LeJ has claimed a number of attacks on the Shi’a community in recent years, particularly Hazaras in Quetta and other Shi’a groups in the Federally Administered Tribal Areas (FATA) and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a’. Several prominent LeJ militants were killed in 2015, including the group’s leader Malik Ishaq.
Sectarian Violence by province: Sindh
With a population estimated at more than 20 million people, Karachi is the largest city in Pakistan. While Sunnis and Shi’a are dispersed throughout the city, some Shi’a-dominated enclaves (particularly Hazara Shi’a) can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir.
Karachi has historically experienced high levels of violence because of rival ethnic, sectarian, political, business and criminal interests. However, violence, including sectarian violence, has fallen significantly in recent years, including because of the NAP and highly visible presence of the federal paramilitary police force, the Rangers. According to the Center for Research and Security Studies (CRSS), the number of fatalities from sectarian violence (involving Sunnis, Shi’a, Ahmadis and other groups) in Karachi fell from 216 deaths in 2014 to 38 deaths in 2016. Only two deaths were attributed to sectarian-related violence in the rest of Sindh province in 2016, compared with 92 deaths in 2015. However, a sectarian attack killed more than 80 people in rural Sindh in February 2017. This attack targeted Sufi worshippers.
According to the South Asian Terrorism Portal (SATP), at least eight sectarian attacks targeted Shi’a in Sindh province in 2016, resulting in at least 12 deaths, with one reported killing of a Shi’a man in the first six months of 2017. The bulk of these incidents involved targeted shootings of Shi’a individuals. It is unclear exactly how many other Shi’a may have been targeted in sectarian violence, as the motives for attacks can conflate personal, business and other interests. Overall, DFAT assesses that there currently is a low level of sectarian-motivated violence in Karachi within a context of a moderate level of overall violence, particularly once the size of the city population is taken into account. It is not yet clear whether the efforts of governments and security forces in recent years to reduce the incidence of violence in Karachi will be sustainable.
Violence against women is highly prevalent in Pakistan. According to the Human Rights Commission of Pakistan’s (HRCP) 2015 Annual Report, 939 incidents of sexual violence, 279 incidents of domestic violence, 143 cases of burning (including acid attacks, and cases where the victim was set on fire) and 833 kidnappings involving women were reported in 2015. These figures only include cases formally reported to authorities; the actual incidence of violence is likely to have been significantly higher. In 2014, the Aurat Foundation identified more than 10,000 cases of violence against women across Pakistan, based on newspaper reports of incidents. This number is also likely to understate significantly the actual incidence of violence against women in Pakistan due to the large number of cases that go unreported.
The victims in many cases, including sexual assault and rape cases, were children. According to the HRCP, in October 2015 three separate rape cases were recorded in Malakand District, Khyber Pakhtunkhwa. The victims in these cases were a 20-year-old girl, a 13-year-old girl and a four-year-old girl. While the prevalence of violence against women is high, successful prosecutions are rare. Law enforcement officers were often involved in sexual assault cases recorded by the HRCP. The US State Department has reported allegations that police have pressured rape victims to drop charges, particularly when the accused had bribed the police officer. Rape cases are often subject to traditional justice mechanisms, under which victims are often required to marry their attackers. Marital rape is not a crime under Pakistani law.
DFAT assesses that, in general, women in Pakistan face a high risk of domestic and societal violence and discrimination because of their gender. Women in Pakistan also face a high level of official discrimination, including in relation to the ineffectiveness of official processes to prevent violence against women and to prosecute the offenders. Women face legal discrimination on issues such as inheritance, property rights, family law, and formal and traditional judicial processes.
Militant attacks on women
Militant groups such as Tehreek-e Taliban Pakistan (TTP) have attacked women and girls, particularly female teachers and girls attending school, due to ideological opposition to female education. The most high profile of these attacks was the 2012 shooting of schoolgirl Malala Yousafzai while she was travelling on a school bus in Swat. The attack was a direct response to a series of high-profile media interviews with Ms Yousafzai in October 2012, in which she promoted girls’ rights to education and condemned the TTP. Attacks on girls’ schools continue in Pakistan, particularly in the FATA, Khyber Pakhtunkhwa and Balochistan, although the frequency of attacks has declined along with the improvement in the general security situation.
Aside from attacks on girls’ education institutions, a number of other attacks have resulted in large numbers of female casualties. The 2016 Easter Sunday attack on a park in Lahore killed mostly women and children (see Christians, above). In October 2016 gunmen attacked a bus in Quetta, taking at least four Hazara women from the bus and killing them on the side of the road (see Hazaras, above). DFAT assesses that the victims in most of these attacks are not targeted specifically because of their gender, but rather because of other characteristics such as religious affiliation. With the exception of attacks on female education institutions, DFAT assesses that women in Pakistan face a low risk of militant attacks motivated by their gender.
DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
Pakistan is not a party to the UN International Convention for the Protection of All Persons from Enforced Disappearance. There are credible reports of enforced disappearances in Pakistan, particularly in the context of Operation Zarb-e-Azb and Pakistan Rangers’ operations in Karachi. Reliable data on the number of enforced disappearance cases are difficult to obtain, and estimates from official, non- government and international organisations vary considerably. According to the Pakistan government’s Commission of Inquiry on Enforced Disappearances, at the end of 2015, 1,390 cases of alleged disappearance had been lodged with the Commission and remained outstanding. Nearly half of these cases were from Khyber Pakhtunkhwa, and around 300 were from Sindh.
According to the US State Department, in 2016 there were ‘kidnappings and forced disappearances of persons from various backgrounds in nearly all areas of the country’. In addition to the reports of enforced disappearances and extrajudicial killings of suspected militants, some disappearances involved political party members, particularly members of the Mutahidda Qaumi Movement (MQM). In May 2016, the Karachi-based MQM submitted to the Pakistan Supreme Court a list of 171 missing party workers, including 100 workers who they allege had gone missing in the first four months of 2016. In 2017, bloggers and online reporters have also faced enforced disappearances
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited by resources shortages, personal socio-economic status and, in some cases, political will. Despite the measures introduced to curb violence across the country under the 2015 National Action Plan (NAP)— such as strengthened powers for military and paramilitary security forces and the establishment of military courts to trial terrorism offences—successful prosecutions of those responsible for politically motivated or sectarian violence are rare. This is due in part to the ineffectiveness of police investigations, and to the effect of threats against judges, lawyers and witnesses. The measures introduced by the NAP were intended to be temporary to allow time for improvements to civilian law and order institutions, but significant reform of the civilian justice system has still not eventuated.
Police
Pakistan’s provinces and autonomous regions are directly responsible for law and order. Police forces are therefore supervised at the provincial level, although the federal government has jurisdiction over police in Islamabad and security forces in the FATA. According to the International Crisis Group, the number of police in Pakistan increased from 220,000 to 430,000 over the decade to 2015.
Police forces in each province act independently of each other, and there are no nationwide benchmarks for training standards and coordination. The Police Act 2002 sought to reform the police by formalising oversight by public representatives and an independent prosecution service. However, Parliament diluted these provisions in a series of amendments to the Act in 2004.
The effectiveness of individual police forces in Pakistan and the challenges faced by these forces vary. Overall, however, police capacity in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors and the judiciary. Credible sources in Pakistan told DFAT that there is a widespread perception across the community of high levels of police corruption.
In addition to the province-based police forces, several paramilitary forces operate in Pakistan. These groups include the Pakistan Rangers, which operate predominantly in Punjab and Sindh provinces. The Rangers are notionally under the authority of the Ministry of the Interior, although they are headed by an Army General and are in practice under the control of the military. The Rangers undertake border security operations along the Indian border, as well as internal law and order operations. The Rangers have been criticised for heavy-handed tactics, particularly in Karachi, including widespread accusations of arbitrary arrests and extrajudicial killings, although they receive popular support from some parts of the community due to the improvement in the security situation in recent years. The Frontier Corps perform a similar role to the Rangers in western border regions, including Balochistan, Khyber Pakhtunkhwa and the FATA.
Judiciary
The Supreme Court of Pakistan sits at the apex of Pakistan’s judicial system, followed by five provincial and regional high courts and numerous district courts. The Constitution guarantees the independence of the judiciary. Pakistan’s Anti-Terrorism Courts prosecute offences under the Anti-terrorism Act 1997. Many residents in tribal areas seek justice through traditional dispute resolution systems, including local committees or jirgas made up of tribal elders, as an alternative to formal justice mechanisms.
Defendants in criminal trials are entitled to the presumption of innocence and are allowed legal representation, although such representation is usually self-funded. Judicial practice in Pakistan tends to favour witness testimony over forensic or other types of evidence. Pakistan abolished trial-by-jury in the 1960s. There are credible reports of corruption in the judicial system, as well as intimidation of the judiciary, particularly in religiously sensitive cases, such as those involving blasphemy. The judicial system is overburdened, and cases can take years to finalise.
In line with the National Action Plan (NAP), on 6 January 2015 the National Assembly amended the Pakistan Army Act 1952 and Article 175 of the Constitution to allow cases involving civilian terror suspects to be heard by military courts, with a two-year sunset clause. On 5 August 2015, the Supreme Court upheld the constitutionality of these courts. Between January 2015 and January 2017, military courts reportedly sentenced around 161 people to death for terrorism-related offences. The jurisdiction of military courts to try civilians was scheduled to end in January 2017, however in March 2017 the parliament passed legislation to extend the courts’ operations for a further two years.
Internal relocation
Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The country’s last census in 1998 showed the high level of internal migration; almost three million people lived in a different province to the one in which they had been born, and nearly 11 million lived in a different district. DFAT understands that large-scale internal movements have continued since the census in 1998. Operations by security forces have forced many people to relocate in recent years, particularly in the FATA and Khyber Pakhtunkhwa. Credible sources in Pakistan told DFAT that the majority of these people have now been able to return to their homes, although in many cases their homes and fields had been destroyed in the security operations. DFAT understands that as of November 2016 around 600,000 people remained displaced as a result of security operations and natural disasters. A further 5,000 families are estimated to have been displaced from Pakistan to the Afghan city of Khost, near the Pakistan border.
Options for internal relocation
Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously- diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. However, groups such as the Ahmadis, who face significant levels of official discrimination, face similar issues in all parts of the country. Lahore has a population of around 10 million people. While it remains a majority-Punjabi city, there are significant numbers of some other ethnic groups, particularly Pashtuns. There are few Hazaras or Turis in Lahore. While security incidents can occur—such as the 2016 Easter Sunday attack—the security situation in Lahore tends to be better than other areas. Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country. Similarly, representatives of the Shi’a community told DFAT that Lahore and Islamabad were the safest parts of the country for Shi’a. Representatives of the Lahore Christian community told DFAT that the security situation has improved and that the government is genuine in its attempts to provide Christians with state protection, although some risks—particularly of communal violence and societal discrimination—remain.
Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare. Such violence more often takes the form of targeted killings (such as drive-by shootings) of high-profile community leaders.
Karachi’s population is estimated at between 20-24 million people, making it Pakistan’s largest population centre. Security operations in Karachi have significantly reduced the level of militant and sectarian violence in recent years, although attacks are more frequent in Karachi than in Lahore or Islamabad. According to the SATP, around 250 people died in terrorism-related incidents in Karachi during 2016. This includes suspected militants killed in encounters with police. The relatively high number of casualties from insurgent, sectarian and criminal violence in Karachi is due in part to the city’s large population. A significant number of internal migrants live in poor conditions on the outskirts of the city. Credible sources told DFAT that Karachi is generally less safe for religious and ethnic minorities than other cities such as Lahore. However, some parts of Karachi are relatively safe, particularly in South Karachi (such as the more prosperous Clifton and Defence neighbourhoods).
Treatment of returnees
Pakistani citizens require a valid passport to enter or exit Pakistan under the Passports Act 1974. Attempting to enter or depart Pakistan without valid documentation or on fraudulent documentation is punishable with up to three years’ imprisonment, a fine, or both. Those suspected of human trafficking or people smuggling may be prosecuted under the Emigration Ordinance 1979, which provides for penalties of up to five years’ imprisonment (up to seven years for a subsequent offence), a fine, or both. In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.
DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.
Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the International Organisation for Migration. Involuntary returnees are not eligible for reintegration assistance. Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.
ATTACHMENT: EXERPTS FROM UK HOME OFFICE INFORMATION – COUNTRY POLICY AND INFORMATION NOTE VERSION 2.0 JUNE 2017
2.2.2 Where the person’s fear is of persecution and/or serious harm from non-state actors, decision makers must assess whether the state can provide effective protection.
2.2.3 Pakistan has a legal framework offering protection and a functioning criminal justice system although its effectiveness varies. The efficacy of the police varies greatly by district, ranging from reasonably good to ineffective. Pakistan’s police system suffers severe deficiencies in a number of areas, including equipment, technology, personnel, training, and intelligence capability. They are considered one of the most corrupt institutions in Pakistan. There have also been reports that the police have often failed to protect members of religious minorities, women and the poor (see also the Country Policy and Information Notes on Pakistan: Land disputes; Hazaras; Ahmadis; Christians and Christian converts; and Women fearing gender-based harm/violence).
2.2.4 There are reports of police abuse including arbitrary arrest and detention; as well as occurrences of torture, ill-treatment and extrajudicial killings of criminal suspects (see Police and security forces and Human rights abuses by state security forces).
The judiciary is subject to external influences. Whilst the high courts and Supreme Court are generally viewed as effective, lower courts are considered corrupt and inefficient with huge backlogs and lengthy court procedures that often do not comply with fair trial standards. Military courts also lacked transparency and fairness (see Judiciary and the rule of law). 2.2.7 The reported case of AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC) (26 January 2011), heard on 11 November 2010, found that there is ‘systemic sufficiency of state protection’ in Pakistan.
2.2.8 The country evidence available since AW was heard indicates that in general access to effective state protection remains possible. However each case must be considered on its facts.
Internal relocation
2.3.1 Where the person’s fear is of persecution or serious harm at the hands of the state, they will not be able to relocate to escape that risk. 2.3.2 The law provides for freedom of movement within the country, although violence in some areas restricts this in practice. Pakistan’s size and diversity generally allows for reasonable relocation options depending on the person’s individual circumstances and the security situation in the area of relocation. In general, a person is likely to be able to access effective protection from the state depending on the nature of the threat and the person’s individual circumstances.
3.1.2 Internal relocation to another area of Pakistan is generally considered reasonable but will depend on the nature and origin of the threat as well as the person’s individual circumstances.
The US Department of State (USSD) Human Rights report for 2016 stated ‘[T]he judiciary often was subjected to external influences, such as fear of reprisal from extremist elements in terrorism or blasphemy cases and public politicization of high-profile cases. The media and the public generally considered the high courts and the Supreme Court credible... Extensive case backlogs in the lower and superior courts, together with other problems, undermined the right to effective remedy and to a fair and public hearing. Delays in justice in civil and criminal cases were due to antiquated procedural rules, unfilled judgeships, poor case management, and weak legal education... Many lower courts remained corrupt, inefficient, and subject to pressure from wealthy persons and influential religious and/or political figures.’ 8.1.4 In its ‘Freedom in the World 2017’ report, covering 2016 events, Freedom House stated ‘Over the last decade, executive interference in the higher judiciary has decreased, and the judiciary in some cases holds the executive to account. However, the […] justice system is marred by endemic problems including corruption, intimidation, a large backlog of cases, insecurity, and low conviction rates for serious crimes.’
Police effectiveness
9.2.1 According to a contributing article to a report compiled by the Asia Society Independent Commission on Pakistan Police Reform, dated July 2012, ‘Pakistan’s police force is under-resourced, poorly trained, badly paid, low in morale, and viewed with suspicion by the courts and society because of its poor human rights record. Most police are regarded as corrupt, inefficient, and unprofessional. There are minimal forensic facilities or modern equipment to help them in doing their job.
Asia Society Independent Commission on Pakistan Police Reform, the report noted: ‘Pakistan’s police system suffers severe deficiencies in a number of areas, including equipment, technology, personnel, training, and intelligence capability. Moreover, the political will needed to address these issues is largely missing. Besides a poor public image, both the police leadership and the rank and file appear to lack a sense of accountability to the public they are meant to serve. Moreover, the system simply is not structured to reward good behavior, as merit-based opportunities for professional advancement are scarce, low pay is the norm, and a lack of support and resources compels even many well-intentioned officers to misuse their authority in order to survive.’
9.2.2 Human Rights Watch (HRW) indicated in its report on police abuse and reform in Pakistan, published September 2016, that constraints such as insufficient human and financial resources; poor infrastructure; problems in the criminal justice system; and interference and influence from internal and external sources; continued to hamper the police, adding that no serious reforms had been undertaken to improve this. According to the USSD Human Rights report, ‘Police effectiveness varied by district, ranging from good to ineffective.’
9.2.3 HRW noted ‘Senior and lower cadre officials across provinces and districts agreed that the justice system needs severe reform for policing to improve. They expressed frustration over the delays in the judicial process and the inability to secure prompt convictions, which some officers used to justify the custodial torture or extrajudicial killings of suspected criminals.’
9.2.4 DFAT noted that ‘Although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.’
DFAT assessed that ‘[S]tate protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.’
9.2.5 The HRW report also stated: ‘Public surveys and reports of government accountability and redress institutions show that the police are one of the most widely feared, complained against, and least trusted government institutions in Pakistan, lacking a clear system of accountability and plagued by corruption at the highest levels. District-level police are often under the control of powerful politicians, wealthy landowners, and other influential members of society. There are numerous reported cases of police extrajudicial killings of criminal suspects, torture of detainees to obtain confessions, and harassment and extortion of individuals who seek to file criminal cases, especially against members of the security forces.
9.2.6 The USSD Human Rights Report stated that: ‘During the year [2016] the government continued to use the military to support domestic security. Paramilitary forces, including Rangers and the Frontier Constabulary (FC), provided security to some areas of Islamabad and continued active operations in Karachi. Following the March 27 [2016] Easter suicide bombing attack on Lahore’s Gulshan-e-Iqbal Park, which killed 75 individuals, the military launched a limited counterterrorism offensive in southern Punjab, which resulted in the arrest of more than 200 suspected militants, although much of the military’s effort focused on criminal gangs in the area.’
9.2.7 Also reporting on military-supported operations DFAT noted: ‘Pakistan’s Army and paramilitary forces regularly conduct counter-insurgency operations in the FATA and remote parts of Khyber Pakhtunkhwa to increase government control in these areas. According to International Crisis Group (ICG), 49,000 people were arrested on terrorism-related charges between the commencement of the National Action Plan (NAP) in December 2014 and May 2015. Despite the relatively high number of arrests, however, successful prosecutions of those responsible for politically-motivated or sectarian violence are rare. This is because of the ineffectiveness of police investigations, as well as the debilitating effect of threats to judges and witnesses, who are not protected by witness protection programs. ICG also notes that only a small number of those arrested under the NAP belong to extremist groups. Although the NAP proposes legal and constitutional amendments to the criminal justice system, there is no clarity about priorities, timelines or resources.
9.2.8 As reported by the International Crisis Group (ICG) in a February 2017 report, in an attempt to stem rising crime in Karachi, in September 2013 the paramilitary Rangers were drafted into the city, at the behest of the Sindh federal government, to focus on curbing terrorism, targeted killings, kidnapping for ransom and extortion. The Ranger’s mandate has repeatedly been extended, most recently in January 2017. The ICG observed ‘[T]he Rangers were authorised, with few constraints, to detain suspects for 90 days without charge and to shoot-to-kill suspected terrorists.’ Although some organised crime – targeted killings and extortion – have reportedly decreased, street crime, gang rape and kidnapping has remained consistent with previous high rates, or increased. However, the Rangers have been accused of human rights violations, including extra-judicial killings, torture and enforced disappearances58.
9.2.9 A March 2017 HRW report on attacks on students, teachers and schools in Pakistan noted: ‘Despite hundreds of attacks on teachers, students and educational institutions, the Pakistani government has not successfully prosecuted the perpetrators in most cases. This failure was highlighted in June 2015, when it was reported that eight out of the ten individuals arrested and charged for the attack [in 2012] on Malala Yousafzai [a student who defended girls rights to education] were acquitted, even after they all confessed to their role in court. Instead of conducting proper investigations and prosecuting those implicated, the Pakistani government constituted secret military courts after the Army Public School attack. Although there have been a number of convictions and even executions since, the families of victims do not know if the actual perpetrators were punished since the trials were conducted in secret.’
Human Rights Watch stated in its September 2016 report:
‘Pakistan’s police are widely regarded as among the most abusive, corrupt, and unaccountable institutions of the state. Effective systems of accountability and redress for grievances are crucial in order to transform the police from a repressive institution into a service that impartially protects life and property. Police implicated in serious abuses are almost never brought to justice… In addition to police practices that facilitate impunity and institutional constraints raised by the police, specific provisions of the law, some dating back to colonial British rule, including the Criminal Procedure Code (1898), the Maintenance of Public Order Ordinance(1960), and the recently enacted Protection of Pakistan Act (2014), all contribute to a legal framework that protects the police from accountability. The Pakistani government’s tendency to use such legislation has increased as the state has become further embroiled in sectarian violence, militancy, and ethnic conflicts.’
In September 2016 the UN Human Rights Council Working Group on Enforced or Involuntary Disappearances stated its concern ‘that no comprehensive mechanism for full and prompt reparation, including social and medical assistance to relatives of disappeared persons, has been established and regrets the information that family pensions are granted to wives of disappeared persons only if the disappeared person was a government servant.’
The USSD Human Rights 2016 noted that, in Pakistan, although the law provides for criminal penalties for official corruption, it was not implemented effectively, and officials frequently engaged in corrupt practices. The report added ‘Corruption was pervasive in politics and government, and various politicians and public office holders faced allegations of corruption, including bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement. Corruption within the lower levels of police was common. Some police charged fees to register genuine complaints and accepted bribes for registering false complaints. Bribes to avoid charges were commonplace.’
Police and the judiciary
12.2.1 Transparency International’s Global Corruption Barometer (GCB) indicated that, of the 1,078 people surveyed in Pakistan in March 2016109, 76% considered that most or all police officers in their country were corrupt. Furthermore ‘[A]round seven in 10 people who came into contact with either the police or the courts [in Pakistan] had to pay a bribe (75 per cent and 68 per cent respectively).’ Over a third of respondents (35%) indicated that they thought the level of corruption had increased over the past year.
12.2.2 The Immigration and Refugee Board (IRB) of Canada stated that ‘In a telephone interview with the Research Directorate [in December 2015], a professor with the Department of Sociology and Criminal Justice at the State University of New York, Oneonta, stated that Punjab is the “worst” region for police corruption, especially “custodial killings,” which are incidents whereby individuals are killed in police custody, but the death is blamed on an outside “encounter” such as resisting arrest.
13.1.1 The USSD Human Rights report for 2016 noted that although the law provided for the rights of freedom of movement within the country, foreign travel, emigration, and repatriation, although these rights are limited in practice.
13.1.2 DFAT’s assessment on internal relocation stated: ‘Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.’
13.2.1 Assessing the situation in Lahore and Islamabad, DFAT stated: ‘The population of Lahore grew from 6.3 million people in 1998 to almost 10 million people in 2014. Compared to many other cities in Pakistan, Lahore remains relatively ethnically homogenous and is majority Punjabi. However, the city’s demographics continue to change with ongoing internal migration processes. Approximately one million Pashtuns have migrated to Lahore since the 1980s, for example. The security situation in Lahore remains better than many other places in Pakistan, with lower levels of generalised and sectarian violence than many other major population centres. The Pashtun community in Lahore has told DFAT its members feel safe and do not feel threatened by sectarian violence. Shias in Lahore have similarly told DFAT the security situation has improved because of Operation Zarb-e-Azb.
‘The population of Islamabad grew from around 800,000 at the time of the 1998 census to almost two million in 2011. Founded in the 1960s, Islamabad has a relatively high population of internal migrants, many from conflict-affected areas in FATA, Khyber Pakhtunkhwa and Balochistan. There are numerous police checkpoints along highways leading into Islamabad, and at major intersections and prominent buildings within the capital. These provide a strong deterrent to militant groups planning attacks in the capital by increasing the risk of detection. Paramilitary Rangers also continue to patrol streets throughout Islamabad, having been deployed throughout the city in April 2014.’
- AGLC
- 1611350 (Refugee) [2018] AATA 432
- Case
- [2018] AATA 432
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the applicants qualified for protection under sections 36(2)(a) or (aa) of the Migration Act 1958 (Cth), or if they were family members of a person in respect of whom Australia owed protection obligations. Central to this determination was the assessment of the applicants' credibility, particularly concerning the alleged kidnapping of the primary applicant's father and the subsequent threats to the family. The Tribunal also had to consider the general country information regarding kidnappings and extortion in Pakistan, and whether internal relocation offered a viable alternative.
The Tribunal applied established principles regarding the assessment of asylum claims, acknowledging the inherent difficulties faced by applicants and the need for a sensitive and reasonable approach. While noting inconsistencies between the primary applicant's statutory declaration and her interview statements regarding her father's continued employment after the kidnapping, the Tribunal found that the applicants' accounts of events were generally consistent. Crucially, although the delegate had doubts about the father's kidnapping, the Tribunal could not be confident that the claims were untrue and therefore accepted that the father may have been kidnapped by the Taliban. The Tribunal also noted that country information supported a peak in kidnappings around 2013, with a substantial drop by 2015, and that wealthy individuals were opportunistic targets.
The Tribunal concluded that the decision under review should be affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The infant [child] of the relationship, [named], was born in [Australia] on [date]. The Tribunal accepts that the child applicant holds citizenship and nationality of Pakistan and not of Australia, notwithstanding that [the birth was] in this country. [The child] belongs to the [specified] ethnic group and [their] religion is Sunni Islam. The child applicant has never been to Pakistan and has no affinity to any particular area.MIGRATION DETAILS [In] June 2012 the primary applicant was granted a student (dependent) [visa] whilst still resident in Pakistan. The primary applicant arrived into Australia from Pakistan [in] March 2013. [In] March 2014 she became subject to a bridging visa A which ceased [in] March 2015. [In] January 2015 the primary applicant lodged the protection visa application and a bridging visa C was granted. The bridging visa C ceased [in] March 2015; [later in] March 2015 another bridging visa C was granted. She remains subject to this bridging visa. The secondary applicant entered Australia initially [in] December 2009, he entered into [City 1], and was subject to a student visa. He returned to Pakistan twice in 2011 and once in 2013 (folio page 136). The Tribunal notes that the secondary applicant arrived into Australia over three years prior to the primary applicant, who arrived into Australia [in] March 2013.ASSESSMENT OF CREDIBILITY The Tribunal’s task of fact-finding involves an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] See, for example: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan, Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[2] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] (1996) 40 ALD 445 at 482.