1413928 (Refugee)

[2016] AATA 3650

1413928 (Refugee) [2016] AATA 3650 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413928

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:David Corrigan

DATE:15 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2016 at 5:37pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas [in] September 2013 and the delegate refused to grant the visas [in] August 2014.

3. The applicants appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

5. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    State protection

16. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

17. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. 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 –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

22. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. I have before me material which includes:

    ·Application for protection visa with statutory declarations of both applicants;

    ·Copy of the applicants’ passports;

    ·Copies of the applicants’ marriage certificate and family registration certificate and their national identity cards;

    ·Original and translated copies of threat letters from the Afghan and Pakistani Taliban to the second named applicant (the applicant wife);

    ·Original and translated copy of a First Information Report (FIR), dated [in] June 2013 by [name deleted] to the Police [Station], Islamabad;

    ·Agent’s written submission undated;

    ·Agent’s written submission dated 16 July 2014;

    ·Agent’s written submission dated 9 March 2016;

    ·Statements of the applicants both dated 1 March 2016;

    ·Copies of photos of the applicant wife at a church service;

    ·Original [identity] card of the applicant wife, dated [in] May 2010;

    ·Original letter from [employer] to the applicant wife at an address in Peshawar, dated [in] January 2010 concerning a [professional] assessment for [occupation];

    ·Original letter from the applicant wife’s doctor certifying she was a resident in Peshawar until May 2012;

    ·Original letter from another family doctor of [a] Hospital, Peshawar, dated [in] February 2016 stating that the applicant wife resided in Peshawar until May 2012;

    ·Various bank statements of the applicant wife showing her Peshawar address;

    ·Various photos of the applicant said to be taken in Peshawar;

    ·Original letter from a parish priest of a [Church], in Peshawar dated [in] October 2014 stating that the applicant wife was resident in Peshawar;

    ·Original letter from a Pastor of [another] Church, dated [in] September 2014, stating that the applicant wife used to reside with her parents until May 2012;

    ·Reference letter from a priest in [Australia], dated [in] October 2014, re the applicant wife;

    ·Letter and certificate from [an educational institution] Peshawar stating that the applicant attended a [course] of [number] weeks duration that was completed [in] March 2012;

    ·Original [identity] card of the applicant issued in April 2012 showing he was based in Islamabad and a letter from the [employer] to a bank;

    ·Copy of a letter from the [employer], dated January 2014, showing the applicant’s service history at different [locations];

    ·Copy of letter from a [person] in the [workplace], dated October 2014, re phone calls made by the applicant’s first wife concerning his relationship with the applicant wife.

24. The first named applicant (the applicant) is a [Shia] who was born in [year] in [a location in Pakistan].  He lived there until 1998.  He worked in the [workplace] as [occupation] from 1998 until May 2012 and lived in various [locations] in [Karachi], [district deleted], Peshawar, Quetta and Islamabad.  He has [children] from a previous marriage.

25. The second named applicant (the applicant wife) is a Pashtun [Christian] who was born in [year] in Peshawar, [Pakistan]. She lived there until 2012 but also lived in Islamabad from March 2009 to May 2012.  She worked for the [workplace] in [a certain] area from August 2007 to October 2011.  

26. The applicants were married in [2009] in a small, non-religious ceremony.  The applicant was threatened by his first wife’s family who felt that he had dishonoured them by marrying a Christian.  He was threatened by his colleagues in the [work place] who felt he had committed a crime by marrying a Christian.  As a result of his actions he was deployed to Quetta which was a dangerous area and was considered a punishment.  She was continually ostracised at work and was not able to complete tasks she was previously allocated.  She was prohibited from entering certain parts of the building.  The harassment caused her to quit her job.

27. Despite trying to keep the marriage quiet, the applicants were regularly ridiculed and threatened by co-workers. His first wife’s family continued to harass the applicant.  His in-laws came to their family home and beat his mother and [relative].  His mother lodged a complaint with the police; however the police did not want to assist her.  He was forbidden by his in-laws from visiting his family home.  She was threatened by extremists within the community.  Her mother received a threat letter from extremists.  Due to these issues, the applicants fled to Australia.

28. The applicant wife returned to Pakistan in March 2013 to assist her sick mother but the situation had not improved.  She was threatened by members of the Taliban who told her she must convert to Islam or be killed.  She was requested to attend a Jirga and agreed.  However, she did not attend and fled to Islamabad to stay with friends and then left Pakistan.  After she left Pakistan, extremists ransacked the house she was residing in Islamabad.  The incident was reported to the police but they did not follow up.  They also questioned her mother who said she was unsure as to her whereabouts.  Her family stated they disowned her in order to avoid harm.

    Country of reference

29. The applicants claim to be Pakistani nationals.  Based on the copies of their passports, I find that Pakistan is their country of nationality for the purposes of the Convention.

    Assessment of claims

30. Despite some concerns, I accept that the applicants are credible witnesses who gave generally consistent evidence that accord with country information concerning inter-faith marriage between a Muslim man and a Christian woman in Pakistan.

31. I accept that the applicant is a Shia and the applicant wife a [Christian].  I accept that the applicant had married a Shia woman and had [children] with her.  I accept that the applicants worked together in the [workplace] and they met in Peshawar.  I accept that they were married in [2009] in a small, non-religious ceremony.  I accept that the applicant was threatened by his first wife’s family who felt that he had dishonoured them by marrying a Christian.  

32. I accept that the applicant was deployed to Quetta which was a dangerous area and was considered a punishment.  I accept that the applicant was ostracised at work and was not able to complete tasks she was previously allocated.  I accept that she was prohibited from entering certain parts of the building and that she resigned from her [role] in the [workplace] in 2011.   I do not accept however that any of this treatment amounted to either serious harm or significant harm and I note the applicant was later deployed to Islamabad and the applicant wife continued to work with the [workplace] for a substantial period after their marriage.

33. I accept that the applicant’s in-laws came to their family home and beat his mother and [relative].  I accept his mother lodged a complaint with the police; however the police did not want to assist her.  I accept that he was forbidden by his in-laws from visiting his family home and that her mother received a threat letter from extremists.  I accept that due to these issues, the applicants fled to Australia.

34. I accept that the applicant wife returned to Pakistan in March 2013 to assist her sick mother but the situation had not improved.  I accept she was threatened by members of the Taliban who told her she must convert to Islam or be killed.  I accept that she was requested to attend a Jirga and agreed.  I accept she did not attend and fled to Islamabad to stay with friends and then left Pakistan.  I accept that after she left Pakistan, extremists ransacked the house she was residing in Islamabad.  I accept that the incident was reported to the police but they did not follow up.  I accept that they also questioned her mother who said she was unsure as to her whereabouts.  I accept that her family stated they disowned her in order to avoid harm.

1. The applicants have submitted a substantial amount of documentation to indicate that the applicant wife continued to reside in Peshawar (and separate from her husband who was in Islamabad) until her departure from Pakistan in May 2012 and I accept that they did not live together in Pakistan but only spent short periods of time together on visits. 

2. I have some concerns about the applicants’ credibility, given neither was actually physically harmed by the applicant’s in-laws from 2009 to 2012 and the applicant returned to Peshawar in 2013.  Neither did the applicants mention the threatening letters from the Taliban in their statutory declarations lodged with their protection visa application.   Furthermore, the Australian Department of Foreign Affairs and Trade (DFAT) have commented that document fraud is endemic in Pakistan and that it is relatively simple to fraudulently produce First Information Reports (FIRs) and that there is credible evidence of police accepting bribes to verify FIRs.[1]  However their evidence was generally consistent and in accord with country information which I find outweighs these matters.

   [1] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

3. I have had regard to information contained in the applicant wife’s [temporary] visa application which appears to be an email from her that states that everything has settled down now and that both of their families have accepted the relationship.  The applicants have claimed that their application was prepared by an agent in Pakistan without their approval of the details and that he made up an email address and stated that their parents had no problems with the marriage which was false and which was done without consulting them.  I have considered their claims and it is apparent that the signatures that appears on the [temporary] visa application form are different to the signatures of the applicants on other documentation (including their protection visa application forms) so I am prepared to accept that this statement in the email was provided without their consent.

4. Country information from DFAT is that there are no legal barriers to interfaith marriage in Pakistan but when interfaith marriages do occur, one partner (usually the bride) generally undergoes religious conversion.[2]  The UK Home Office have recently reported:

   [2] Australian Department of Foreign Affairs and Trade, DFAT Thematic Report Shias in Pakistan, 15 January 2016.

   Sources consulted by the IRB’s Research Directorate confirmed that
   marriages between Muslim men and Christian or Jewish women are allowed
   by Islam and that such women do not have to convert to Islam to marry
   Muslim men.  However, sources in the Pakistan Christian community
   consulted by the Foreign and Commonwealth Office stated that ‘A Christian
   woman marrying a Muslim man is permissible, on the basis that the woman
   will convert to Islam.’  In correspondence with the IRB in 2004, the Human
   Rights Commission of Pakistan (HRCP) said that ‘The existing law does not
   force conversions on Christian women wedding Muslim men, though by
   custom and in practice a name change and kind of “cosmetic” conversion is
   very often made.’

   6.2.1 According to the HRCP, marriages between Muslim men and Christian
   women are usually “unproblematic” although the reverse situation can cause
   “troubles”. A Pew Research Center survey published in 2013 indicated that
   in Pakistan, only 9 per cent of Muslims would be comfortable with their son
   marrying a Christian, and only 3 per cent would find their daughter marrying
   a Christian acceptable.

5. Pakistani Today have recently reported:

   Three years ago, a Muslim businessman fell in love with a Christian woman. Anywhere else in the world, this would not prompt a news piece, but in Pakistan interfaith relationship are not just taboo, they can pose great risk to the people involved.

   Shahid Khursheed Rana and his wife Rukhsana Chaand Masih have been shunned by not just the community but also his family. The two have endured death threats and abductions.

   Rana, 40, son of Muhammad Khursheed in an email told the scribe about the threats he has had to put up with after marrying Masih.

   Rana said that he fell in love with Rukhsana Chand Masih some three years ago. “I run a transport business in the city and met with Rukhsana. We developed friendly relations and after three years of deliberation we reached the decision that we should get married,” he said.

   “On October 15, 2015, I tied knot with Rukhsana, but I forget that I would have to face problems because of not just the society but also my own family,” he added.

   “I got engaged to my cousin in my early childhood, but I didn’t want to marry her. Now my relatives and the brothers of my fiancée are forcing me to give Rukhsana a divorce and marry the girl that I was engaged to in my childhood,” he lamented.

   Threats are aplenty. The couple has been given death threats and warned that if a child were born then that too would be killed.

   “I shifted to a rented house with Rukhsana as we have been forced by my family to leave them after I married a Christian woman,” he said.

   “We have no threats from Rukhsana’s family, but her family members were also frightened following the threats from my relatives. Islam allows one to marry a Christian woman and I did not commit a sin. I want protection and for this I will knock the doors of the law enforcement agencies,” he said.

   Marriage out of choice remains a taboo in our country, particularly when it involves a partner outside one’s own clan or faith.

   National Peace Committee for Interfaith Harmony (NPCIH) Vice Chairman (VC) Michael Javed claimed that he witnessed 10 cases himself where the in-laws murdered boys for marrying Christian girls.

   “Islam allows one to marry a Christian woman and to respect each other’s faith,” Javed said.

   “I have travelled the world and seen many places where Muslims marry Christians and they are happy. However, in Pakistan the society assumes that interfaith marriage is sin,” he asserted.

   “We [the Christians] never stop or threaten our community members for marrying Muslim men or women,” Javed added.

   “The severity of the issue could be evaluated from the fact that Muslims here in Pakistan look at those who wishes Christians on Christmas with hatred in their eyes,” NPCIH VC noted.

   “Illiterate religious scholars in madrassas are imparting hate-based education amongst the children that gives birth to religious extremism in them,” NPCIH VC observed. “The government and the institutions would have to play their role to root out narrow-mindedness in our society by taking action against the elements involved in fanning religious extremism to make Pakistan like one the Quaid-e-Azam envisioned,” Javed stressed.[3]

   [3] Pakistani Today, Little Happiness, a lot of danger-interfaith couples brave threats, 21 January 2016,

6. Whilst Islam does not require a Christian woman to convert to Islam to marry a Muslim man, the above country information particularly that from the Foreign and Commonwealth Office strongly indicates that a Christian woman in practice would need to convert to Islam (at least in a cosmetic way).  The applicant wife has been consistent that she does not wish to convert to Islam and the applicant also gave evidence that he did not want to make her do this.  Given this country information and their past history, I find that they both face a real chance of persecution in the reasonably foreseeable future throughout in Pakistan from non-state actors (Islamists and the applicant’s in-laws) who would not approve of the marriage and the applicants living together without the wife’s conversion to Islam.  In making this finding, I note that the applicant has [children] living in his home area with his mother and his first wife and that [a relative] is married to his first wife’s [relative].  I note the applicant had contact with his children when he resided in Islamabad when they were brought to him by a [relative] and I find it reasonable that he would attempt to maintain contact with them in this way.  In these circumstances, I cannot rule out that his location in other parts of Pakistan would become known to his in-laws and other Islamist groups and that both applicants would face serious harm as a result from these actors.  I also consider that the applicant wife’s non-conversion to Islam would also become apparent to others in the society no matter where they resided and this would place them at further risk of harm.

7. DFAT have commented that state protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.  They state that police forces suffer from poor training, outmoded and insufficient equipment and manipulation by superiors, political actors and the judiciary.[4]  Given this authoritative information, I find that the applicants would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

   [4] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

8. Having regard the country information overall and the applicants’ individual circumstances, I find that the applicants faces a real chance of persecution in the reasonably foreseeable future in Pakistan for reasons of religion.

9. There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in their case.

   Conclusions

10. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

    DECISION

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

    David Corrigan

    
    

    Member