1510042 (Refugee)

[2016] AATA 4743

1510042 (Refugee) [2016] AATA 4743 (15 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510042

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Amanda Goodier

DATE:15 November 2016

PLACE OF DECISION:  Perth

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

Statement made on 15 November 2016 at 5:24pm

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] June 2015. A copy of the delegate’s decision was attached to the application for review.

3. The applicant appeared before the Tribunal on 28 September 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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.[1]

   [1] DFAT, 2016, DFAT Country Report Pakistan, 15 January.

   Background

9. The applicant was born on [date] in [her home town in] Punjab, Pakistan.  She speaks, reads and writes Urdu and English and indicates her religion as Sunni Muslim.  She indicates she was divorced [in] 2011 in Pakistan.  She indicates she lived with her family in [her home town] from birth until she departed Pakistan for Australia in March 2010. 

10. The applicant indicates she was married to [name deleted] but they are now divorced.  They have one child [who] lives with his father.

11. The applicant in her written statement claims to fear harm returning to Pakistan as there is a tribe system in her family.  She obtained a divorce which is against the tribe and she had a hard time so she left the country.  She was feeling stressed and experiencing tension as nobody was giving her respect in her tribe and the tribe people were degrading her.  Honour killing is well known in her tribe and tribes’ people are killing girls in the name of honour killing.  They killed her [relative] in 2007 due to the same issues.  She faces potential danger from the tribe because they killed her [relative] and put her dead body in [a location].  Tribes people are very aggressive and they are brainwashed especially as they are uneducated.  She is scared of them and does not want to go back until she feels secure.  She does not want to happen to her as it happened to her [relative].  The authorities cannot protect her due to corruption and they do not believe there is any danger. 

12. The delegate’s decision refers to the applicant indicating that in her village there is a group of about 15 to 25 people who believe that divorced women should be killed and members live about 2 kms away from her home.  She claims they have killed many divorced women including her [relative].  They are not related to her family and none of her family were members of the group. They wanted to kill divorced women as they did not want the practice of women divorcing their husbands to become popular in the community and they were not against men divorcing their wives.  They were based at the local mosque and led by a “priest” but she was unable to identify any members or leaders.  She indicated that none of the tribe was aware that she was divorced and her father travelled to Lahore secretly to lodge the divorce papers. She said that some of her family were aware of her divorce and the villagers were talking as she rarely ventured out or visited her husband’s family which is contrary to Pakistani customs.  She claimed her father reported the harassment she claims to have experienced to the police who told them they were unable to guarantee her safety.  She claims that about 5 to 6 days after her divorce papers were filed she left and returned to Australia and therefore did not experience any problems from the tribe.  After her return her father informed her that members of the tribe had obtained a copy of her divorce papers and were aware of her circumstances.  She claims her [relative]’s husband wanted to marry another woman as her [relative] was unable to bear a son and her [relative] told him that she wanted a divorce before he married another woman.

13. The delegate found the applicant’s delay in lodging the application undermined her claim to fear harm.  She also demonstrated a lack of knowledge about the tribe.  The delegate did not find the applicant a witness of truth and had embellished and fabricated her claims to fear harm on her return to Pakistan.      

14. The delegate’s decision refers to the applicant arriving in Australia [in] March 2010 with her ex-husband and [child] as a dependent on her husband’s [temporary] visa.  She separated from her husband and they divorced [in] November 2010 and her husband took custody of their [child].  [In] January 2011 the applicant travelled to Pakistan for approximately 6 weeks and the purpose of that trip was to finalise her divorce paperwork.    Her [temporary] visa ceased [in] June 2010 and she was granted a bridging visa until a further [temporary] visa was granted [in] November 2010 which ceased [in] April 2011 when she was granted another bridging visa.  [In] January 2014 she applied for this visa.

15. The applicant indicated that her marriage to her husband was arranged and they married in 2006 and lived in Lahore with her husband until 2008.  Their [child] was born in Lahore.  She claimed that after their arrival in Australia in November 2010 her husband started bringing home another woman and from that point their marriage broke down irretrievably and they agreed to a divorce.   

16. The applicant provided a copy of her divorce certificate indicating that her husband gave notice of divorce [in] November 2010 and it was confirmed by the Arbitration Council [in] February 2011.

17. The applicant confirmed at hearing that she resided with her family until her marriage in 2006 when she moved to Lahore with her husband.  When her husband travelled to Australia, she returned to live with her family.  She then joined him in Australia with their first child.  Her husband started having affairs with other women and they obtained a divorce.  Her husband supported her until they separated and now she relies on [an agency].  Her husband remarried but is no longer with his second wife.  She has regular contact with her husband as she provides care for their first child and is the primary carer for their second child.  Her husband is the father of her second child with the applicant providing details of the circumstances in which she fell pregnant with her second child to the Tribunal.  She was not married to her husband at the time she fell pregnant. 

18. The applicant told the Tribunal that she initially put in an application for divorce but was pressured to reconcile wither husband.  Her husband then lodged the divorce application which was confirmed in February 2011 when they both visited Pakistan to sign the necessary documentation. The Tribunal finds this is consistent with country information in that it is more difficult for women to obtain a divorce in Pakistan but a husband has a unilateral right of divorce.  The Tribunal also notes that upon giving written notice of a divorce, the Union Council is required to constitute an Arbitration Council in an attempt to bring about reconciliation between the husband and the wife, and this is so even with a mutual divorce.[2]  

    [2] Shaikh, A Undated, Law of Divorce and Khula in Pakistan, Mumtaz and Associates, p. 3 < Accessed 7 January 2015 <CISEC96CF134>

19. The applicant indicated to the Tribunal that she completed [number] years of education and has never worked as she was either supported by her father or her husband.

20. The applicant told the Tribunal that her father supported her, even with the divorce from her husband but he has now passed.  With his support she was able to return to the family home.  [Details of siblings deleted].  The applicant told the Tribunal that everyone in her village marries and divorce is frowned upon.  A divorced woman is not wanted as some believe this will encourage other women to get divorced.  It is fine for a man to divorce.  It is believed that as a divorced woman she can lead a life she wants and even work somewhere. 

21. The applicant told the Tribunal she no longer has anything in Pakistan.  She is unable to live with her [siblings] as their [spouses] do not want her to live with them as she is a divorced woman.  She has no money, no house, no education and no work experience. Her father is deceased and unable to support and protect her. 

    Does the applicant have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

    Background and nationality

22. The applicant indicated in her protection visa application that she was born in [date] in [her home town in] Punjab, Pakistan. The applicant claims to be a Pakistani citizen and holds Pakistan passport. The Tribunal accepts that the applicant is a national of Pakistan and has assessed her claims against Pakistan as her country of nationality and receiving country.

    Findings

23. The Tribunal firstly notes the comments expressed by the delegate in relation to the timing of the applicant’s claims and her credibility. The Tribunal acknowledges that claims can be embellished, but that does not necessarily equate to a person not having a well-founded fear of persecution should they return to their home country.  Whilst the Tribunal initially shared the delegate’s concerns, having had the benefit of discussing and listening to the applicant’s evidence, the Tribunal has reached a different view to the delegate in relation to the applicant’s credibility and her fear of harm should she return to Pakistan.

24. The Tribunal accepts on the evidence provided that the applicant would be returning to Pakistan as a divorced woman. 

25. Pakistan is ranked as the third most dangerous place in the world for women and one of the most unequal with widespread violence against women including sexual abuse, harassment and rape.[3]  Women in Pakistan experience both official and societal discrimination and, according to the Department of Foreign Affairs and Trade, are subject to gender based violence, are increasingly marginalised and are retreating from public space. [4]

    [3] UK Department for International Development, Leading the way: first female prosecutor in Khyber Pakhtunkhwa fights for women’s rights, 28 November 2014

    [4] DFAT, 2016, DFAT Country Report Pakistan, 15 January

26. The position of women in Pakistan society can be assessed with reference to specific legislation. For example, the 2011 Prevention of Anti-Women Practices Amendment Act criminalises giving a women in marriage to settle a civil or criminal dispute and the 2010 Acid Control and Acid Crime Practice Bill criminalises maiming or killing (women, usually) via corrosive substances.[5] Other legislation discriminates against women including the Qanoon-e-Shahadat Order 1984 (Law of Evidence), the Hudood Ordinances 1979 and the Citizenship Act 1951.[6]

    [5] US Department of State, 2015, Country Report on Human Rights Practices 2014, Pakistan, 26 June

    [6] United Nations Committee on the Elimination of Discrimination Against Women Concluding observations on the fourth periodic report of Pakistan adopted by the Committee at its fifty-fourth session (11 February – 1 March 2013)

27. The Human Rights Commission of Pakistan has reported that the status of women in Pakistan society depends on a number of factors such as their education, class, religion, economic independence and location (urban or rural), cultural and traditional values, caste, marital status and number of children[7] and that it is “next to impossible” for a single woman to live alone due to prejudices against women and economic dependence. It is easier for educated, higher class and working women to live alone in big cities such as Karachi, Lahore and Islamabad but it is still a rare occurrence.[8] Problems for women renting and living alone and for divorcees include social constraints, security concerns, stigmatisation and social rejection.[9] According to one study, stereotypical norms in deeply patriarchal Pakistan do not favour women who work and live alone and house owners are generally hesitant to rent property to such women.[10]

    [7] Human Rights Commission of Pakistan, 2012, State of Human Rights in 2011, March

    [8] Immigration and Refugee Board of Canada, 2010, PAK103608E Circumstances under which a woman has the legal right to get a divorce through the courts (judicial divorce) through her own initiative; circumstances under which single women can live alone, 17 November

    [9] Ibid

    [10] International labour Organisation (ILO), 2011, Situation analysis of the residential facilities available for Pakistani working women at/near their workplace, ILO Country Office for Pakistan, Towards Gender Parity in Pakistan (TPG) Project

28. There is a high level of gender based violence against women in Pakistan with one study finding that six women were kidnapped, four were raped, three committed suicide and six were murdered in Pakistan every day during 2014.[11] Prosecutions for rape are reportedly rare and police are sometimes implicated in rape cases. Statistics are also reportedly unreliable due to severe underreporting and lack of a central data collection. [12] Women who do report are often not believed or reprimanded for being partly or wholly responsible.[13] Whilst women only police stations have been established to respond to violence against women, these are reportedly struggling with a lack of personnel and resources and inadequate training.[14]

    [11] ‘6 women kidnapped, 4 raped every day in 2014’, The News International, 10 February 2015

    [12] US Department of State, 2015, Country Report on Human Rights Practices 2014, Pakistan, 26 June

    [13] Aurat Foundation, 2013, Annual Report 2013: Situation of Violence Against Women

    [14] US Department of State, 2015, Country Report on Human Rights Practices 2014, Pakistan, 26 June

29. According to another report, “women in Pakistan are disproportionately exposed to injustice when seeking help from law enforcement agencies, particularly at local police stations, both rural and urban. Because of the prevailing patriarchal and misogynistic culture in Pakistan women are victims of violence in both the private (domestic abuse) and public spheres (abuse in state agencies, in the workplace, and in educational institutions) … Women face a form of violence in their interactions with law enforcement agencies as complainants. This ‘structural violence’ manifests itself in the form of insensitivity within the justice system toward female complainants, negligence in responding, delay in action, and outright refusal to recognize the occurrence of violence. The behaviour of police towards women in Pakistan reflects the general attitude of Pakistani society as a whole…..”[15]

    [15] Asia Society, 2012, Report by the Independent Commission on Pakistan Police Reform, Stabilizing Pakistan through Police Reform, July

30. DFAT also notes that whilst the Pakistan government has taken steps to legislate to reform women’s rights, these have largely languished or not been fully implemented or enforced.[16]

    [16] Ibid

31. The Tribunal accepts on the evidence provided that as her father is deceased, she no longer has his protection and support, both financially and emotionally.  The Tribunal also accepts that she is unable to reside with or obtain support from any of her siblings as a divorced woman due to the opposition of [their spouses].   The Tribunal also accepts that she is unable to obtain support from any other family member in Pakistan.  The Tribunal notes that the applicant has only received a [certain level of] education and never worked either in Pakistan or in Australia, having been supported by her father or her husband. 

32. The Tribunal notes that it is rare for women to live alone in Pakistan, including educated and working women, which the applicant is not; and that such women are vulnerable to harm because of societal norms and assumptions. DFAT has noted that women in Pakistan tend to live in segregation from men, particularly men outside their family.[17] 

    [17] DFAT, 2016, DFAT Country Report Pakistan, 15 January

33. The country information set out above indicates that women are subject to high levels of harm in Pakistan and that a divorced woman such as the applicant, living alone, will be particularly vulnerable to such harm including sexual harassment, assault and other gender based violence. She has no male or family protection and the Tribunal accepts that this will make her vulnerable to harassment, violence and exploitation in the workplace, in the rental market and in society generally. Having regard to the country information above, the Tribunal accepts that the applicant faces a more than remote chance of suffering serious harm as a divorced woman living alone in Pakistan.

1. The Tribunal finds that there is a real chance the applicant will suffer serious harm in Pakistan as a divorced woman living alone and that the harm will be discriminatory and systematic in nature.

2. The Tribunal finds that “divorced women” is a particular social group in Pakistan. The Tribunal is satisfied on the basis of the country information above that “divorced women” is an identifiable group in Pakistan sharing a common characteristic of gender and marital status which causes them to be discriminated against and subordinated in Pakistan society.

3. Having regard to the country information above regarding the attitude of police to women complainants, the Tribunal is satisfied that adequate and effective state protection will not be available to the applicant. The Tribunal is satisfied state protection would be withheld by the authorities for reason of the applicant’s membership of the particular social group “divorced women” in Pakistan. 

4. The Tribunal finds that relocation is not a viable option for the applicant. The country information above indicates that she may face harassment and violence anywhere in Pakistan. The Tribunal notes the UK Home Office report on ‘Country Information and Guidance, Pakistan: Women’ provides information (at 2.4.1) that it is ‘next to impossible’ for a single woman to live alone in Pakistan due to economic dependence and prejudice against woman, and although some educated higher class working women could live alone in urban areas, this was rare.  The report also states divorcees faced specific stigmatisation and social rejection.  There is nothing in the DFAT report that contradicts the conclusions of the UK report.  In all the circumstances, the Tribunal concludes relocation is not reasonably available to the applicant.

5. The Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason should she return to Pakistan now or in the reasonably foreseeable future.

   CONCLUSION

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Amanda Goodier
   Member