1511103 (Refugee)

[2017] AATA 2937

1511103 (Refugee) [2017] AATA 2937 (15 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511103

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Michael Hawkins

DATE:15 November 2017

PLACE OF DECISION:  Brisbane

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 2017 at 8:25am

CATCHWORDS

Refugee – Protection Visa – Pakistan – Particular social group – Married woman but with the appearance of being a single or divorced woman – Pakistani women – Transgression of social mores – Arranged marriage – Fear of violence – Violence against women – Honour killing – Lack of state protection – Internal relocation – Witness credibility

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL [2012] FCAFC 147
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

SZRSN v MIAC [2013] FCA 751

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 [in] July 2015 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] February 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, and nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk the applicant will suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

8. ‘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.

9. 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.

   Relocation

10. Under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That relocation must be ‘reasonable’ is also a requirement when considering the definition of ‘refugee’ and the Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    State protection

11. Under s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL [2012] FCAFC 147.

    Mandatory considerations

12. 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 relevant country information assessments 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Background:

14. The applicant is a [age] year old woman from the city of Faisalabad, province of Punjab, Pakistan.

15. The applicant is of the Sunni Muslim faith, is of Pakistani ethnicity and speaks Urdu.

16. The applicant was single at the time of application, but at the time of hearing is married.

17. Her family are Sunni Muslims. At the time of application, her parents lived in Pakistan. Her mother is now deceased. She has [a number of siblings]. One [relative] is an Australian Permanent resident since [2014] and lives [details of location].

18. The applicant attended and completed Primary, Middle and High School in Pakistan, from [range of years].

19. The applicant has never worked.

20. The applicant arrived in Australia [in] August 2014 under passport number [passport number], issued [in] 2014 and expiring [in] 2019.

21. The applicant was granted a [temporary] visa which expired [in] February 2015.

22. The applicant applied for a protection visa [in] February 2015.

23. The applicant attended an interview with the delegate [in] April 2015.

    Claims:

24. The applicant claims that she left Pakistan because she wanted to visit her [relative, Ms A].

25. The applicant claims that she will be in danger of death or injury as she has informed her parents that she did not wish to marry her fiancé and her parents have informed him and his family. She claims that her parents, her fiancé and his family are all angry.

26. The applicant claims that it is customary in the circumstances that she is in for physical harm and/or death to be suffered at the hands of her own family and/or fiancé or his family.

27. The applicant claims that historically protection has been lacking.

28. The applicant claims that as a single woman, it would be very difficult or impossible to relocate.

29. Her representative at the time of making the application claimed that the applicant had formed a romantic relationship with a person in Australia and that the family of her Pakistani “fiancé” are aware of this.

30. Her representative at the time of making the application claimed that the applicant will become the victim of an honour killing or serious attack if she returns to Pakistan.

31. Her representative at the time of hearing, in his pre-hearing submission, claims that the applicant is a member of a particular social group, being “Pakistani woman”.

    Evidence:

32. The Tribunal has before it a range of material, including, relevantly:

    §The applicant’s protection visa application form completed and signed [in] January 2015, lodged [in] February 2015 (“visa application”);

    §The applicant’s identity documents being certified copy of a passport;

    §The protection visa decision record (‘delegate’s decision record’) [July] 2015;

    §The review application form which included a copy of the delegate’s decision record;

    §An extensive pre-hearing submission from the applicant’s representative dated [in] May 2017;

    §Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Pakistan, published on 15 January 2016 and 1 September 2017.

    Country of reference / receiving country

33. The applicant claims to be a Pakistani national. Based on the copy of her passport provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Pakistan is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

34. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

35. The applicant, her representative and two witnesses in support, including [Ms A] and [Ms A's husband, Mr A], attended the hearing on 29 May 2017. Her husband attended as a support person. The hearing was assisted by an interpreter in the Urdu language. The hearing commencement was delayed due to difficulties with the recording system. Further technical issues were experienced throughout the hearing.

36. The Tribunal confirmed that her husband would not be giving evidence. The Tribunal was told that the applicant’s husband was from [Country 1]. He presently held a [temporary visa]. The Tribunal confirmed that the outcome of the applicant’s visa application was of importance to them both.

37. The applicant confirmed that her protection visa application form was completed by her with assistance from a migration agent and signed by her.

38. The Tribunal read to the applicant her claims. The applicant confirmed the claims as set out in her application form were accurate and confirmed that she had signed it. The Tribunal noted the applicant’s first representative’s claim that the applicant will be the victim of an honour killing if she returns. The Tribunal also noted her current representative’s claim that the applicant is a member of a particular social group “Pakistani women”.

39. The Tribunal asked the applicant when she and her fiancé met. She said they had never met. She said his name is [Mr B]. He is [a distant relative on her mother’s side].

40. The Tribunal noted that it understood arranged marriages in Pakistan were normally patriarchal. The applicant replied that was the case, but depended on a match, whether there was a male on the father’s side of the right age. In this case, and given she was the [number] daughter, there was no match on her father’s side.

41. The applicant said both her mother and father agreed that she would be right for this marriage. The decision and engagement were in or around 2013, but she couldn’t remember.

42. The applicant stated that as was custom, separate engagement parties were held. They would only meet at their wedding. Her engagement was a small affair, with only family attending - her brothers and sisters and family from her fiance’s side.

43. The Tribunal noted from the application form that the applicant had said she was engaged in May 2014. Earlier she had said 2013. When questioned again, the applicant said she couldn’t be sure.

44. The Tribunal noted that the delegate had noted [a number of] people attending her engagement party. The applicant agreed with that.

45. The applicant stated that she is the [number] daughter. Her [sisters] also had arranged marriages. Where a marriage is to be arranged, a proposal is sent to the parents of the girl. She said that all of her sisters were happy in their marriages. Only she was unhappy. None of her sisters met their husbands before the wedding day.

46. The applicant said that [a number] of her sisters had seen [Mr B] and the applicant had seen a photo of him. From the photo and with the encouragement of her sisters, the applicant decided he was not right for her. She said he looked like a “thug”. She said she could not remember when she decided not to proceed with the wedding.

47. The Tribunal asked the applicant why she came to Australia. The applicant said her [relative, Ms A,] was [suffering from a medical condition] and needed help. Only she was able to come out to Australia. Her [other family members] were [unavailable].

48. The witness ([Ms A]) said she [contacted] the family and asked if the applicant could come over. She said her condition was poor. She convinced [the] parents that the applicant could come. She said that she arranged for the visa.

49. The applicant decided when she was in Australia that she did not want to proceed with her marriage.

50. The Tribunal queried the applicant as to when she saw the photo of [Mr B]. She confirmed she saw the photo in Pakistan. But she made the decision not to proceed in Australia.

51. The Tribunal queried the applicant as to how her decision was communicated to [Mr B]. The applicant said she told [Ms A] first, in November 2014. She said she felt confident in Australia to say that. She said she saw the way women are regarded in Australia, with respect. She told [Ms A] that that was what she wanted, and didn’t want to marry [Mr B].

52. The applicant said that [Ms A] spoke to her parents first. The applicant said her parents got angry and tried to convince her that their decision was correct. The applicant then clarified her parent’s response. She said that they said that just like her sisters before her, this marriage would be arranged. Her parents were angry.

53. The applicant said her decision got to her fiancé. [Mr B] rang her, and threatened that he would not leave her alone. He said that he would kill her. The Tribunal asked when that call was made. The applicant said she couldn’t remember. And then [Mr A] disconnected the phones and moved house.

54. The Tribunal reminded the applicant that she had told the delegate that no threats were made by [Mr B].  The Tribunal pointed out the inconsistency. The applicant said that she had told the delegate of the threat.

55. The applicant stated that her brothers were angry. One brother is still angry. He has told her that he will not leave her alone. The Tribunal asked if this was the threat. The applicant stated that she interpreted that statement to mean that her brother will kill her as a matter of pride. She said her father had threatened to kill her.

56. The Tribunal again reminded the applicant of what she had told the delegate. She had told the delegate that her father had not threatened her. The applicant agreed that was what she had told the delegate and that that was correct. It was since her marriage that her father had threatened to kill her - because of her marriage.

57. The applicant said that her brother gets very angry, and made a threat to her through [Ms A]. The Tribunal again reminded the applicant of what she had told the delegate - that her brother only made a threat when she advised the family about her intended marriage to [Mr C]. The applicant agreed that was the case.

58. The Tribunal noted that the applicant appeared to be making a new claim - threats made to her since her actual marriage.

59. At this time, after noting the applicant had taken a natural justice break, and was requesting another, and the representative explaining that as it was Ramadan and that the applicant was not eating properly, the Tribunal suggested the hearing be adjourned and be rescheduled after Ramadan.

60. Before the adjournment, the Tribunal said it would discuss the following country information with the applicant and that the representative may wish to respond to it at the next hearing.

    Country Information

61. The Tribunal discussed a summary of the following country information:[1]

    [1] Department of Foreign Affairs and Trade’s (DFAT’s) Country Information Report on Pakistan, published on 15 January 2016 and DFAT Thematic Report on Shia’s in Pakistan, also published on 15 January 2016

62. The official unemployment rate in Pakistan is 6.0 per cent. Unofficial estimates of unemployment are as high as 15 per cent. Unemployment is higher in rural than urban areas, with official statistics indicating approximately eight per cent of people in rural areas were unemployed in 2013-14. Women in Pakistan also have significantly lower participation and higher unemployment rates than men.

63. According to Pakistan’s Ministry of Overseas Pakistanis and Human Resource Development, 2.76 million Pakistanis left Pakistan to seek employment abroad from 2008-13. Remittances from these workers are an important source of income for many families in Pakistan. According to the World Bank, remittances made up 6.9 per cent of Pakistan’s GDP in 2014.

64. Overall, DFAT assesses that the low level of development in Pakistan acts as a significant ‘push factor’ for external migration. Better economic opportunities in large urban centres also encourage internal urbanisation.

1. Article 25(5) of the Constitution of Pakistan prohibits ‘discrimination on the basis of sex.’ There have been several prominent female role models in Pakistani society. For example, the late Benazir Bhutto served two terms as Prime Minister; Fehmida Mirza was Speaker of Pakistan’s National Assembly from 2008 to 2013; Shehrbano (Sherry) Rehman held a number of ministerial posts and was recently Pakistan’s Ambassador to the US; and Hina Rabbani Khar was Pakistan’s Foreign Minister from 2011-2013.

2. However, the role of high-profile women in Pakistan is not representative of conditions for women in general. Although they are not absent from public life, women in Pakistan tend to live in segregation from men—particularly from men outside their families. Credible sources have described an on-going ‘retreat’ of women from the public space in Pakistan.

3. According to the Aurat Foundation, there were 7,852 cases of violence against women (VAW) in 2013. Abduction and kidnapping were the most prevalent forms of VAW (2,026 cases reported), followed by murder (1,425), rape/gang rape (956), domestic violence (498), honour killings (487), acid throwing (43), burning (42) and sexual assault (38). Most reported VAW cases occurred in Punjab (5,815), followed by Sindh (1,130), Khber Pakhtunkhwa (597), Baluchistan (151), Islamabad (147) and the FATA (12). Married women were most targeted by VAW (42 per cent), followed by unmarried women (40 per cent). VAW was lowest against widows and divorcees. HRCP and the Karachi-based NGO, War Against Rape, both highlight the ineffectiveness of investigations into VAW cases.

4. Successive governments have legislated to reform women’s rights in Pakistan. The Protection of Women’s Rights Act 2006 sought to differentiate the crime of zina (sex outside marriage) and zina-bil-jabr (rape) and reform provisions in the Hudood Ordinance under which women who report rape can be charged with having sex outside marriage. While the Federal Shariat Court overturned elements of the Act in December 2010, the Federal Government reportedly appealed the decision and has taken no action to implement the ruling. The Prevention of Anti-Women Practices Act 2011 makes it an offense to compel women to marry (especially “in consideration of settling a civil dispute or criminal liability” through wanni and swara) or deprive women of their property inheritance rights.

5. DFAT assesses that women and girls are increasingly marginalised in Pakistani society. They face a moderate level of official discrimination in relation to the ineffectiveness of investigations into, and prosecutions of, VAW. They face a high level of societal discrimination in relation to employment opportunities, familial decision-making and VAW.

6. Pakistan’s laws and Constitution provide for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses state protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.

7. 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.

8. Section 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The country’s last census in 1998 underlined the high level of internal migration: almost three million internal migrants moved between provinces, and many more relocated within provinces. The majority of these migrants cited marriage and family reasons for relocating, while others moved because of business and employment opportunities. Almost 17 per cent of those who migrated to different provinces cited ‘other’ reasons for their decision to relocate.

9. 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.

10. 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.

11. 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.

12. The hearing was resumed on 10 July 2017.

13. The Tribunal confirmed that the matter had been adjourned to better allow the applicant and her family to participate post-Ramadan.

14. The Tribunal recapped some of the earlier evidence, and suggested that it might be useful to categorise the “fears” into three event categories, and within each, to consider past conduct and fear and future concerns and conduct.

15. The Tribunal also suggested that it would be very useful to better understand the dates of the three events it would summarise below.

16. The three events could best be described as:

    ·The applicant’s refusal to marry the fiancé and the response thereto;

    ·The applicant’s relationship with [Mr C] and the response thereto; and

    ·The applicant’s marriage to her now-husband, [Mr D] and the response thereto.

17. The Tribunal also highlighted the possibility that the circumstances of her marriage may be considered by the Tribunal under the provisions of s.5J(6).

18. Before considering the aforementioned matrix, the Tribunal told the applicant it also wanted to better understand the timeline in her making the application for protection.

19. The Tribunal noted that the applicant arrived in Australia on [in] August 2014 under a [temporary visa] which expired [in] February 2015. The Tribunal noted that the applicant made her protection visa application [previously in] February 2015.

20. The Tribunal also noted the date that the applicant advised [Ms A] who in turn advised the family of the applicant’s decision that she did not wish to proceed with the planned marriage to her fiancé [Mr B], that date being sometime in November 2014.

21. The Tribunal noted that [Mr B] had called her, but she could not remember when. And the evidence was inconsistent as to whether [Mr B] had actually made any threat to her. 

22. The Tribunal sought to reconcile these dates to establish the genuineness of the fear that the applicant actually had at the time of making the application. Why had she waited until what seemed to be just before her current visa expired before making the application for protection which was at a time that seemed to be some three months after [Mr B] became aware of the termination of the marriage plan?

23. The applicant stated that [Mr A] had to persuade her to make an application for a protection visa. She wasn’t convinced that that was what she wanted to do. Her parents were trying to convince [Ms A] to send her home again. [Mr A], who wanted to assist her, was under pressure from the family to return her to Pakistan. The Tribunal discussed with the applicant her response that she wasn’t sure that was what she wanted to do. She stated that she wasn’t sure yet whether she wanted to stay in Australia permanently. [Mr A] persuaded her that she should.

24. The Tribunal discussed with the applicant that it had already dealt with the circumstances of her deciding not to proceed with her marriage, and the consequences that flowed from that.

25. The Tribunal discussed her relationship with [Mr C].

26. The applicant stated that when she told her family that she intended to marry [Mr C], her family tried to scare her. They threatened to kill her when she told them she would not be coming back.

27. Following this, the applicant said that she has only spoken to her family on one occasion since then. All other communications have been through [Ms A].

28. The Tribunal confirmed that the applicant made her decision not to marry [Mr B] when she was in Australia and communicated that to the family in November 2014.

29. The Tribunal asked the applicant about the circumstances of her meeting [Mr C]. She couldn’t remember when she met [Mr C] or for how long she went out with him. She remembered that she met him at [a location]. She said that when he found out that she wasn’t a permanent resident, he left her. She said she would have liked to have married him. She said that [Mr C] arrived in Australia [unlawfully] and had no visa. The Tribunal asked about [Mr C], and his background. The applicant said he was from Pakistan, a Sunni Muslim and of a similar caste to her (middle class). He was not aware of her background. The applicant stated that she put his name on her visa application with his phone number. At the time of the department interview, he evidently found out about her visa situation and left.

30. The Tribunal asked the applicant why it was that her brother was so particularly upset at this relationship with [Mr C]. The applicant said it was more to do with her not marrying [Mr B]. Asked why, she said [Mr B] was a relative, and because she had said no to him, there will be no respect for her family. The Tribunal noted what the applicant had said in the earlier hearing, that her brother was angry about her wanting to marry [Mr C], and was not angry about her not wanting to marry [Mr B], and that therefore his anger must have been coincidental because she told her brother about [Mr B] and [Mr C] at the same time. The applicant said that was not the case, that she told her brother about not wanting to marry [Mr B] and wanting instead to marry [Mr C] on separate occasions.

31. The Tribunal turned to Mr [D].

32. The applicant said she met Mr [D] through friends of [Mr A] who told her about him. These friends were from Pakistan too and were Muslims.

33. Mr [D] is from [Country 1]. The applicant said she met him around July/August 2016. Mr [D] has been in Australia for about four years. He told her that he came from [Country 2], and that he had an unlimited visa. He was applying for a protection visa from the situation in [Country 1].

34. The applicant said they married in [later in 2016].

35. The Tribunal noted that it was a very fast courtship. The Tribunal explained the provisions of s.5J(6) and queried why the Tribunal might not be unreasonable in thinking that she had entered this marriage to advance her protection claims. The Tribunal noted that the applicant might have been somewhat cautious after her experience with [Mr C], given the perception that [Mr C] was interested in her because he thought she had permanent residency. Did she ascertain whether [Mr D] had similar motives? The Tribunal asked how many times she had met [Mr D] before marrying him. She said three or four times. The Tribunal noted that it all took place very quickly. The Tribunal discussed again whether she may have married [Mr D] to help her visa prospects. The applicant said she never thought about that. She said [Mr D] is a good man, a Muslim and that she has been in Australia three years. She had told her parents that she would marry [Mr C], and then he ran away. She said she wasn’t aware of [Mr D]’s visa status when she decided to marry him. The Tribunal noted that this appeared strange, again particularly in light of her previous experience with [Mr C]. She said he was good culturally.

36. The Tribunal asked what [Mr D] did. The applicant stated that he was working as a [occupation]. He works six days a week, sometimes seven days. They are living together in their own house.

37. The Tribunal asked the applicant why she married [Mr D].  She said she did because she liked him and because it was her choice.

38. The Tribunal discussed with the applicant her father’s response to the news of her marriage to [Mr D]. She stated that he said that when she returns, she won’t be spared, that they will kill her and never forgive her. She also said that when her mother died, her father put the blame for that on the applicant as well – because of all the pressure that was on her. The applicant said she hasn’t spoken directly to her father, the threats come to her through [Ms A]. The Tribunal asked when the most recent threat was. She said about four to five months ago, when [Ms A] was last in Pakistan. She said that her father said it was OK for [Ms A] to visit them, but not the applicant. The Tribunal noted that it was strange for the father not to be angry at [Ms A] given [Ms A] was protecting her. She replied stating that the father is angry and doesn’t actually call [Ms A] – she has to call him.

39. The applicant said she has not spoken directly to her brother since she married. Her brother spoke to [Ms A] when she was in Pakistan and renewed his threats.

40. The Tribunal asked the applicant what would happen if she had to return to Pakistan. Would [Mr D] go with her? The applicant said she did not know, she had never asked, she wasn’t sure what he would do.

41. The Tribunal asked what would happen if [Mr D] went back with her. The applicant said her father and brother would kill them both. Asked why, she said it would be an honour killing.

42. The Tribunal sought to explore the brother’s motivations. Was it about caste or religion? The applicant said it was not. They were the same religion. It was for the brother all about respect, and how other people would respect him.

43. The Tribunal took evidence from the applicant’s [relative, Ms A].

44. The Tribunal explained the three scenarios set out in the matrix above. It outlined the threats the applicant had received. In relation to [Mr B], [Ms A] said she tried to send [the applicant] back, but the applicant wouldn’t agree. Then the applicant met [Mr C], and the family got even angrier. The father and brother told the applicant she would not be spared.

45. [Ms A] said that when the applicant met [Mr D], they spoke about it in Pakistan. She said they were very angry, and said they would kill her. Now they don’t even mention the applicant’s name. They have told [Ms A] only to call if she doesn’t talk about [the applicant]. She said she returned to Australia from Pakistan on [in] January 2017 and reiterated that [the father] won’t even talk about the applicant.

46. The Tribunal asked [Ms A] if she likes [Mr D]. She said she did. The Tribunal asked whether [the applicant] might have married [Mr D] for visa purposes, given how short the courtship was and that they’d only seen each other three or four times. [Ms A] did not think this strange. She did not think [the applicant] had married for love, maybe for companionship. She said all that mattered was that it was the applicant’s decision.

47. The Tribunal asked [Ms A] about the future. She said that if the applicant returns with her husband, it will be a very big problem. She said that when she was last in Pakistan, the family wouldn’t even talk about it. She believes the family will kill her and possibly [Mr D] too.

48. The Tribunal took evidence from [Mr A]. The witness wanted to make a statement and said that the applicant should be allowed to spend her life as she wants.

49. He went on to say that when the applicant told him about her decision in relation to [Mr B], he said he told her that she should have made that decision and told [Mr B] when she was in Pakistan, so that he was not surprised.

50. He said that he and [Ms A] were scared for the applicant.

51. The Tribunal quizzed the witness about the future and what he saw happening. He said it was possible that the brother might kill them. It was possible.

52. The Tribunal concluded the hearing by making some observations about the evidence. It was not terribly persuaded by the evidence about the consequences of the applicant leaving [Mr B] and entering a relationship with [Mr C]. The evidence was contradictory and where the evidence at the hearing contradicted the evidence given to the delegate, the explanations for the inconsistencies were not plausible. The evidence relating to the applicant’s marriage to [Mr D] and the circumstances by which they came to be married raised concerns. The Tribunal invited the applicant’s representative to make a submission that might seek to clarify the claims and more specifically to the claim that the applicant was a member of a particular social group.

53. The representative delivered to the Tribunal a well-crafted and expansive submission on 24 July 2017.

54. The representative submitted that the applicant was a member of a particular social group, of individuals, who have transgressed social expectations, which common characteristic is having breached social norms, which can not be changed or renounced and is recognisable by virtue of their status. He said that the failure of men and women to conform to models of behaviour as dictated by religion, tradition or local customs can result in persecution.

55. The representative argued that in this case, the applicant is being persecuted by her family and [Mr B]’s family, on local traditions, practices and cultural grounds and as a matter of great family dishonour after rejecting an arranged marriage proposal. He claims that not having followed this tradition and societal expectation has exposed the applicant to threats of violence and she is highly likely to be a victim of an honour crime that could result in death.

56. The representative stated that the threats continued with her marriage to [Mr D] that has further infuriated her family in Pakistan. She faces harsh or inhumane treatment as a result of having transgressed a social more by exercising freedom of thought and chosen to marry for love.

57. The representative had made a claim in his pre-hearing submission that the applicant was a member of a particular social group “Pakistani woman” but has made no further reference to that claim since. The Tribunal will address that claim below as it considers members of particular social groups.

58. The representative made a submission that he claims is backed by country information that the applicant would not be able to avail herself of state protection. He drew reference to information that stated there were about 1000 honour killings per year, notwithstanding that forced marriages have been made a criminal offence, and for a variety of reasons, including illicit relationships and economic dimensions. He suggested that family disputes and domestic violence are not intervened in by the state or the police.

59. The representative also made a case for his client not being able to be relocated. He acknowledged that Pakistan has a large population, but her family has distant relatives across the whole of Pakistan. Furthermore, the applicant has no specific skills and no work experience and would not have any family support and would be unable to provide herself with food and safe accommodation.

60. The representative also submitted that relocation would bring further misery and personal crisis as her husband, who is [applying for a subsequent visa] would be unable to accompany her as he has no valid passport and does not have travel rights under his present visa. Accordingly, it would be unreasonable for her to relocate.

61. A final hearing was held on 1 November 2017.

62. The Tribunal addressed its first question to the representative asking whether the applicant had abandoned her claim of “Pakistani women” as a particular social group given that subsequent submissions have not addressed it. The representative suggested that his subsequent submissions had attempted to narrow the claim down, to women who are subject to domestic violence and at risk of an honour killing.

1. The Tribunal asked the applicant whether [Mr B] was aware that the applicant had married [Mr D]. She said she didn’t know, but agreed that he may have found out from the family, given that [Mr B] was a relative. She stated that she hadn’t heard from him at all.

2. The Tribunal asked the applicant whether she was in contact with her [sisters] who live in Pakistan. She said that she has heard from only one sister but that was a long time ago. She has not heard from the [others].

3. The Tribunal noted that [a number of] her sisters had encouraged her to break off her engagement to [Mr B], had given her photos of [Mr B] and took her side when there was a confrontation with her parents. The Tribunal asked why they had not kept in contact with her now. The applicant said they didn’t know how to contact her.

4. The Tribunal asked the applicant about her brothers-in-law. Did she know them, would they be inclined to threaten her as a consequence of her decisions. She stated they would not make threats.

5. The Tribunal asked the applicant why she had not contacted them. She admitted that she knows where they are, but hasn’t felt the need to contact them. She said it is also expensive to contact them.

6. The Tribunal asked the applicant what she would do if she went back to Pakistan. She stated that she doesn’t think about going back. The Tribunal asked her where she would go. The Tribunal discussed there being three or four large cities she could go to, but the applicant said she has relatives in all of those cities. The Tribunal asked whether there was an issue with this. She said she was not concerned about the relatives doing anything to her, but was very worried about them telling her father and brother where she is.

7. The applicant then stated that she believes her relatives will threaten her for marrying [Mr D], which she says is a “big no-no” in Pakistan culture.

8. The Tribunal asked the applicant whether she couldn’t contact her sisters if she was back in Pakistan. She said this would be the fastest way for her father and brother to find out where she was.

9. The Tribunal discussed with the applicant whether her family would really kill her, or whether they prefer to simply disown her. Her father won’t talk to her, he won’t let [Ms A] mention her name when they speak. The applicant said the family is more angry with her because they blame her for the death of her mother. The applicant said that whilst she is in Australia, she is OK, and the family just don’t want to know her, but the minute she is back in Pakistan, they will kill her.

10. The Tribunal asked the applicant where single women go to in Pakistan. She said she doesn’t know. She has heard that women in her position get killed. The applicant said she was not sure if her sisters would help her, she didn’t know. Furthermore, they have their own husbands and family and she would not be welcome. She is fearful of her father.

11. The representative offered that single women or divorced women have no rights, they are subject to strict Islamic traditions, they cannot get employment. The applicant has not worked, and she has no skills. She could live in a women’s refuge for a short time, but that won’t be lasting and she will be subjected to rape. Her husband has no visa and could not return with her, so she will be alone.

    Assessment of Claims and evidence, and findings:

12. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

13. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    Credibility

14. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …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.

15. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

16. The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicant’s evidence throughout the hearing to ensure accuracy of understanding and that she understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said she understood the interpreter.  The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that she may have breaks during the hearing as well to allow a break for the interpreter. The applicant did avail herself of breaks during the hearings.

17. During the hearings, the Tribunal discussed with the applicant her background, her family, her employment, where she lived in Pakistan and Australia, her religion, her reasons for leaving Pakistan and why she fears returning to Pakistan. The Tribunal found aspects of her evidence to be lacking in detail, implausible, contradictory and unconvincing. There were a number of inconsistencies in her evidence which raise issues in relation to the veracity of her claims. The Tribunal is of the view that she is not a reliable or credible witness for the reasons that follow.

18. The applicant claimed to have been engaged to be married to a [Mr B]. The marriage was arranged for her in the customary way by the respective parents. The applicant stated in her application form that the engagement took place in May 2014. In evidence, she stated that it took place sometime in 2013. When asked about the inconsistency, she said she couldn’t be sure.

19. Whilst the applicant was vague and uncertain about the date of her engagement, she was able to provide some detail as to how the “arrangement” came about, how [Mr B] was related to her, she provided photos of her engagement party, provided corroborative evidence through [Ms A] that [all] of her sisters had entered into arranged marriages and had not met their husbands before the wedding day. The Tribunal accepts that the applicant was engaged to be married to [Mr B] and that the engagement took place whilst she lived in Pakistan.

20. The applicant was frank in her explanation of how she came to be in Australia. She came to Australia to assist her [relative] during [a period when she was suffering from a medical condition]. Her visa application bore that out. The Tribunal noted the responsibility the applicant took for looking after the children in the hearing room, notwithstanding that the children’s mother was also in the room.

21. The applicant claimed that it was after she came to Australia that she decided that she would not marry [Mr B]. Her evidence suggested that she was not happy with the marriage arrangement from the outset, even having her sisters argue her case with her parents. Her sisters had told her about [Mr B] when she was in Pakistan and she even had seen a photograph of him while she was still in Pakistan. The Tribunal accepts that while the applicant had reservations about the marriage arrangement before coming to Australia, she had not resolved to cancel the wedding plans until she moved to Australia. The Tribunal further accepts that at the time the applicant came to Australia she did intend to return to Pakistan. The Tribunal also accepts that the applicant had to be persuaded to consider a protection visa.

22. The applicant claimed that she decided to terminate the engagement in November 2014 and told [Ms A] first. [Ms A] in turn told her parents who were angry. She said her decision got to [Mr B] and he rang her. In evidence, she said that [Mr B] threatened her and said he would not leave her alone. She was reminded of what she told the delegate – that he had not made any threat at all. She confirmed that she had not heard from him or his family again. No threats have been made to or through her family. The Tribunal does not accept that [Mr B] or any member of his family has made any threat to the applicant. It accepts that the applicant has not heard from him or his family since that first and only phone call.

23. The applicant claimed that her parents tried to persuade her that their decision that she should marry [Mr B] was a correct decision and that her father made a threat to her that he would kill her. Again, on questioning and highlighting what she had previously said, the applicant agreed that her father had made no threat to her at this time. The Tribunal does not accept that the applicant’s parents, or more specifically her father, made any threat to her at the time she announced she would not marry [Mr B].

24. The applicant claimed that one of her brothers was angry with her and also threatened that he would not leave her alone, which she interpreted as a threat to kill her. The applicant was again reminded of what she had told the delegate – that her brother only made a threat at the time he learned about her intentions with [Mr C]. The applicant again agreed that was correct. The Tribunal does not accept that the applicant’s brothers, or specially one brother, made any threat to her at the time she announced she would not marry [Mr B].

25. The applicant’s representative (as at the time of making her application) made a claim that the applicant had formed a romantic relationship with a person in Australia and that the family of her Pakistani fiancé were aware of this. Further, during the course of the hearing, a claim seemed to emerge that when her family, especially a brother, found out about her relationship with [Mr C], threats were made to her.

26. In evidence, and before the delegate, the applicant was clear that she had not heard from [Mr B] or his family since that one phone call in late 2014. The Tribunal does not accept the claim that [Mr B] or his family were aware of her relationship with [Mr C] or that anything emanated from that.

27. The applicant claimed her brother was very angry when he learned about the relationship with [Mr C]. The Tribunal asked her about the cause of that anger. The applicant stated that it had more to do with the shame that the brother felt had been cast on the family from her not marrying their relative, than anything to do with [Mr C]. The Tribunal noted what the applicant had said in the earlier hearing, that her brother was angry about her wanting to marry [Mr C], and was not angry about her not wanting to marry [Mr B], and that therefore his anger must have been coincidental because she told her brother about [Mr B] and [Mr C] at the same time. The applicant said that was not the case, that she told her brother about not wanting to marry [Mr B] and wanting instead to marry [Mr C] on separate occasions.

28. When [Mr C] learned that the applicant did not have a visa and was not a permanent resident, he left her immediately. There was no further evidence about [Mr C] offered. The Tribunal does not accept that the applicant received any threat from any family member as a consequence of her announcing that she was in a relationship with [Mr C]. The Tribunal does not accept that there will be any further consequences relating to the relationship with [Mr C] as that relationship is now terminated.

29. The applicant made a new claim that her father made a threat to kill her when he learned of her marriage to [Mr D]. She claims he also blamed the applicant for the death of her mother – because her mother was under great stress because of the applicant refusing to marry [Mr B].

30. It is important to note the evidence of both the applicant and [Ms A] at this time. Both consistently said that the applicant was not communicating with her parents at all. The only communication came through [Ms A]. And latterly, her family would not even mention the applicant’s name. The family made it clear that it was alright for [Ms A] to visit and call them, but not the applicant. The applicant has not spoken to her father – the threat to her came through [Ms A]. The applicant has not spoken to her brother – his threat came to her through [Ms A] when it was made when [Ms A] returned to Pakistan for a visit. Neither has picked up the phone to call the applicant. She had not heard from anyone since [Ms A]’s return to Pakistan in January. The Tribunal noted that it was strange that the family would still be talking and welcoming [Ms A] when it was [Ms A] who was harbouring the applicant and allowing her to stay in Australia. The applicant responded to that by saying that her father didn’t call [Ms A], she had to call him, but the Tribunal noted that he still took her call. The applicant said her brother was not angry about her marriage, rather angry about the issue of respect to the family.

31. The representative referenced country information referred to by the delegate.

32. Country information indicates that the constitution of Pakistan provides for equality for all citizens and broadly prohibits discrimination based on race, religion, gender, caste, residence, or place of birth; in practice, however, there is significant discrimination based on each of these factors. Furthermore, discrimination on the basis of gender is commonplace and domestic violence, rape, honour crimes and sexual harassment against women are serious problems in Pakistan. It is widely reported that in Pakistan's patriarchal society, women often are treated as personal property, and perpetrators of violence were often husbands and other male family members.[2]

    [2] CISEC96CF1560:Department of Foreign Affairs and Trade, "DFAT Pakistan Country Report April 2015 Final version approved for release", 14 April 2015, Section 3.51; 0G1F18C90132 'Pakistan- Country Reports on Human Rights Practices 2013", US Department of State, 27 February 2014; 00180885B22 "Country Information and Guidance Pakistan Women", UK Home Office, 16 July 2014, Section 2.2.3; NG5A1E6BC61: Amnesty International, "Amnesty International Annual Report 2014/15 - Pakistan", "Patriarchy, Gender Violence and Poverty amongst Pakistani Women: A Social Work Inquiry", Horizon Research Publishing, 2, 01 April 2014, C152F827091506

33. Country information notes that many young girls and women are victims of forced marriages arranged by their families. Although forced marriages are a criminal offence and many cases were filed, prosecution remained a problem and women are not accorded equal status as men under the criminal law.[3] Country information also notes that honour killings of women remained a serious issue. Pakistani human rights non­governmental organisations (NG0s) estimate that there are about 1,000 "honor killings" every year[4] and that the most common motives for honour crimes identified by researchers include illicit relationships, contamination by association, immoral character and economic dimensions such as settling personal or property feuds.[5]

    [3] 0GIF18C90132: US Department of State, "Pakistan - Country Reports on Human Rights Practices 2013", 27 February 2014; NG5A1E6BC61: Amnesty International, "Amnesty International Annual Report 2014/15 - Pakistan"

    [4] NG5A1E6BCI18: Human Rights Watch, "World Report 2015 - Pakistan"p.422

    [5] ¹⁰CX1B9ECAB8732: "When will women be Empowered in Pakistan?", Daily Times -Pakistan, 15 December 2014; NG5A1E6BC118 "World Report 2015 - Pakistan", Human Rights Watch;^. CI52F827D91307 "Honour Crimes in Pakistan: Unveiling Reality and Perception", Community Appraisal & Motivation Program, 31 March 2014

34. The Tribunal already had concerns about the applicant’s credibility as to the issues of threats made and when they were made. The applicant’s evidence had been vague and regularly contradictory, and changed when inconsistencies were pointed out to her. At every juncture, when reminded of something previously said that is inconsistent with the claim being then reviewed, the applicant generally agreed that it was inconsistent and then offered an alternative response.

35. The behaviour of the applicant’s family is consistent with that of a family which has decided to have no further contact with their daughter and sister, than one that is inclined to make threats to harm her, or actually harm her. [Ms A], in evidence stated that the family won’t even talk about the applicant. When asked what would happen if the applicant returned to Pakistan, she said it would be a big problem. When prompted, she added that the applicant would be killed, and probably [Mr D] too. When the Tribunal asked [Mr A] (whom the Tribunal accepted as a very good witness), the witness said it was only possible that the applicant would be killed, in his view. The applicant has not heard from any family member, except through [Ms A], and even then, not since [Ms A]’s visit to Pakistan.

36. The Tribunal asked the applicant about whether [Mr B] knew about her marriage to [Mr D]. She was less than convincing in stating that she didn’t know. She admitted that he could know through the family, but that she hasn’t heard from him at all. Her immediate family know that she lived with [Ms A] and that [Ms A] knows where she is. If he wanted to contact her, her family would, the Tribunal suspects, oblige by giving him, or his family, [Ms A]’s contact details. That has not happened. The Tribunal finds that it is more than likely that [Mr B] is aware of the applicant’s marriage to [Mr D], but has maintained his position of not wanting to contact her.

37. The behaviour of [Mr B] is also consistent with that of a person who has decided to have no further contact with his former fiancé, than one who is inclined to harm her. [Mr B] has spoken to her just once since she broke off the engagement, and has not contacted her since, either directly, or through her family or through [Ms A] when [Ms A] was in Pakistan. It is likely that [Mr B] is now aware of her marriage to [Mr D], yet no evidence was presented of him having reacted to that news or having made any threats, or even made contact, with the applicant or her family. The Tribunal is satisfied that the applicant will not face harm from [Mr B] on account of her marriage to [Mr D] if the applicant returned to Pakistan.

38. In all of these circumstances, the Tribunal does not accept that the applicant has been threatened with death, or indeed any harm, by any member of her family, her former fiancé or any member of his family on account of her decision to terminate her engagement to [Mr B], disclose her relationship with [Mr C], or her decision to marry [Mr D].

1. The Tribunal did spend some time exploring the applicant’s relationship with her new husband [Mr D]. It cast doubts over the reasons of the applicant marrying in such haste in circumstances where she knew so little about [Mr D], and given what had happened to her in her relationship with [Mr C]. The Tribunal noted the evidence of both witnesses, neither of whom could bring themselves to state that the applicant had married for love. They agreed she had married for companionship or because she could simply marry who wanted to. But when specifically asked, stated that they did not believe love was an element. The Tribunal finds that the applicant has married [Mr D], in circumstances that might be deemed rushed and unusual, and most likely for reasons other than love, however, given the findings above, it is not necessary for the Tribunal to make any other findings about the applicant’s marriage to [Mr D] and the application of s.5J(6).

2. Having considered all the evidence, including the country information, and the submissions, the Tribunal is not satisfied that there is a real chance that the applicant would be at risk of serious harm for reason of, or arising out of, her decision to terminate her engagement to [Mr B], disclose her relationship with [Mr C], or her decision to marry [Mr D], now or in the reasonably foreseeable future.

   Representatives submissions relating to claims of applicant having transgressed social mores as a member of a particular social group.

3. The representative submitted that the applicant has transgressed the social mores of strict Pakistani tradition. She continues to face and is likely to face in the near future, some harsh and inhumane treatment as a result of having transgressed the social mores of the society in which she lives. The submission states that the applicant has exercised freedom of thought and chosen to marry for love which is in contravention of social expectations. This is an insult to tradition and those guided by it deem it as an act that cannot go unpunished. If the applicant was to return to Pakistan there would be a real significant risk of an honour killing.

4. The representative submitted pre-hearing that the applicant was a member of a particular social group of “Pakistani women”, though did not refer to that claim again.

5. The Tribunal is satisfied that the applicant has not married for love, but has exercised some freedom of thought.

6. The issue to be countered in considering the representative’s submissions, is who is the applicant at risk of harm from? The applicant has spoken only of her father and one of her brothers during the course of this matter. The Tribunal has found that the applicant’s father and brother are exhibiting all the characteristics of people who want nothing to do with their daughter and sister. They won’t speak to her and won’t talk about her with [Ms A]. That appears to be the only consequence of breaching their expectations of social mores or of her being a Pakistani woman.

7. The representative also submitted that the applicant is unable to be relocated. He acknowledged that Pakistan has a large population, but her family has distant relatives across the whole of Pakistan. Furthermore, the applicant has no specific skills and no work experience and would not have any family support and would be unable to provide herself with food and safe accommodation.

8. The Tribunal had discussed with the applicant country information about the right to freedom of movement in Pakistan. The last census had underlined the high level of internal migration. Almost three million migrants moved between provinces, and many more relocated within provinces. The majority of these migrants cited marriage and family reasons for relocating.

9. The representative noted that the applicant has relatives across the whole of Pakistan, but at no time has the applicant claimed fear of harm from any relative other than her father and one brother. In fact the applicant has [a number of] other sisters, with [number] of them residing abroad. Some of those sisters supported the applicant’s decision to not proceed with the marriage and argued her case with their parents. Her father and brother have not severed relations with [Ms A] who has been harbouring her in Australia. Notwithstanding that early support from two of her sisters, the applicant states she has not maintained contact with any of her sisters, apart from one initially. She states they are all married and that she would not be welcome into their homes. She also says that the risk to her is that her relatives will inform her father as to her whereabouts.

10. The representative also submitted that it would be unreasonable for the applicant to relocate as it would bring further misery and personal crisis as her husband, who is [applying for a subsequent visa] would be unable to accompany her as he has no valid passport and does not have travel rights under his present visa.

11. The Tribunal noted that when the applicant was asked what would happen with her husband in the event of her returning to Pakistan, the applicant responded that she didn’t know, as they hadn’t discussed it. The Tribunal finds that any separation of family members is a consequence of the applicant’s return to Pakistan and would not constitute persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group). The Tribunal also finds that the separation of family members would not amount to significant harm as defined in s.36(2A). In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of significant harm.[6] Australia’s complementary protection obligations are not triggered by the mere fact that different family members are nationals of different countries and that one may not have the right to enter and reside in the other’s country of nationality.

    [6] [2013] FCA 751 (Mansfield J, 6 August 2013)

12. The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of her membership of a particular social group, as a person who has transgressed the social mores of strict Pakistani tradition, if she returns to Pakistan now or in the reasonably foreseeable future.

    Membership of a particular social group - Failed asylum seeker

13. Whilst neither the applicant or her representative have claimed specifically that the applicant fears imprisonment due to her status as a failed asylum seeker or that she will be identified as a failed asylum seeker upon their return, the Tribunal did address the issue when discussing country information. 

14. The Tribunal discussed with the applicant country information that indicated as follows:

    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.

    Findings

15. The Tribunal accepts the country information above. The country information referred to above indicates that failed asylum seekers who are returned to Pakistan with a valid passport are not charged with leaving Pakistan illegally or for seeking asylum in another country.

16. The Tribunal noted that the applicant’s passport was still valid.

17. The Tribunal is not satisfied that there is a real chance that the Pakistan authorities will arrest, charge and imprison the applicant in relation to her seeking asylum in another country.

18. The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of her membership of a particular social group, being failed asylum seekers, if she returns to Pakistan now or in the reasonably foreseeable future.

    Membership of a particular social group – Pakistani woman or single women in Pakistan.

19. The applicant told the Tribunal she no longer has anything in Pakistan.  She is unable to live with her sisters as their husbands would not want her to live with them as she is a married woman. She has had no contact with them for some years. She has no money, no house, no education and no work experience. Her mother is deceased and her father disowns her and would not support and protect her. Her husband has no visa and would be unable to accompany her and provide her with support or protection.

20. 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.[7]  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. [8]

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

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

21. 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.[9] Other legislation discriminates against women including the Qanoon-e-Shahadat Order 1984 (Law of Evidence), the Hudood Ordinances 1979 and the Citizenship Act 1951.[10]

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

    [10] 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)

22. 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[11] 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.[12] Problems for women renting and living alone and for divorcees include social constraints, security concerns, stigmatisation and social rejection.[13] 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.[14]

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

    [12] 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

    [13] Ibid

    [14] 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

23. 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.[15] 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. [16] Women who do report are often not believed or reprimanded for being partly or wholly responsible.[17] 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.[18]

    [15] ‘6 women kidnapped, 4 raped every day in 2014’, The News International, 10 February 2015

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

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

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

24. 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…..”[19]

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

25. 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.

    Findings

26. The Tribunal accepts on the evidence provided that the applicant would be returning to Pakistan as a married woman but with the appearance of either a single or divorced woman.

27. The Tribunal has previously found that the applicant feared only her father and brother, and went on to find that notwithstanding her claims of fear of being killed by her father and/or brother, her father and brother exhibited all the characteristics of people who want nothing to do with her – they disown her. The Tribunal accepts that her sisters and brothers-in-law have not been in contact with her and have moved on with their lives and that the applicant would not be a welcome guest with any of them. Consequently, the Tribunal accepts that on the evidence accepted, that as her mother is deceased, as her father and brother have disowned her, she does not have any male protection or support, either financially or emotionally. The Tribunal also accepts that she would be unable to reside with or obtain support from any of her siblings or other brothers as a married woman living as a single woman due to the fact of her having had no contact with them. The Tribunal also accepts that she would be unable to obtain support from any other family member in Pakistan.

28. The Tribunal notes that whilst the applicant was educated to a high school level, she has never worked either in Pakistan or Australia, except as a carer for [Ms A]’s children in Australia. She has only ever been supported by her family, then by [Mr A] and now by her husband.

29. 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.[20] 

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

30. The country information set out above indicates that women are subject to high levels of harm in Pakistan and that a married woman, but with the appearance of being a single or 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 married woman, but with the appearance of being a single or divorced woman living alone in Pakistan.

31. The Tribunal finds that there is a real chance the applicant will suffer serious harm in Pakistan as a married woman, but with the appearance of being a single or divorced woman living alone and that the harm will be discriminatory and systematic in nature.

32. The Tribunal finds that “married woman but with the appearance of being a single or divorced woman” is a particular social group in Pakistan. The Tribunal is satisfied on the basis of the country information above that “married but with the appearance of being a single or divorced woman” 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.

33. 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 “married women, but with the appearance of being a single or divorced woman” in Pakistan. 

34. 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 women, 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 that pursuant to s.5J(1)(c) the real chance of persecution relates to all areas of the receiving country.

    Conclusion: Refugee Criterion

35. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for reason of membership of a particular social group. Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

36. Given the Tribunal’s findings above in relation to the applicant being a refugee, the Tribunal finds that it is not necessary to consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that she will suffer significant harm.

    Overall conclusion:

37. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

38. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered it unnecessary to consider the alternative criterion in s.36(2)(aa).

39. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

   Michael Hawkins
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   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.

   ..

   36Protection 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.

   …