1515436 (Refugee)

[2017] AATA 524

1515436 (Refugee) [2017] AATA 524 (16 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515436

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:16 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 March 2017 at 8:34am

CATCHWORDS
Refugee – Protection visa – Pakistan – Particular social group – Operation of the Qisas and Diyat law – Race – Pressure on victims’ family to pardon murderers – Requests to withdraw legal proceedings – Threats of killing – Liberal views – Wealthy Pakistanis – No intentional harm

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 Schedule 2, r 1.12

CASES
Applicant S v MIMA [2004] HCA 25
Applicant S v MIMA (2004) 217 CLR 387

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of  Pakistan, applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] October 2015.

3. The first named, second named and sixth named applicants appeared before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘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.

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

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. Only the first named applicant has made specific claims under the Refugees Convention and Complementary Protection, her husband, children and mother relying on their membership of her family. For convenience, therefore, the Tribunal will refer to the first named applicant as the applicant.

22. The applicant claims to be a citizen of Pakistan who was born on [date] in Nowshera, in Pakistan. According to her protection visa application, she resided in [named village and town], in Khyber Pakhtunkhwa (KPK) from July 2004 to July 2014.  The applicant completed [number] years education and has a [qualification] which she completed in [year]. She is fluent in Urdu and English. The applicant described her occupation before coming to Australia as [occupation 1]. She worked at [an employer] in Nowsehra from [year] to July 2014. The applicant departed Pakistan legally [in] July 2014. Present in Australia and included in the application are the applicant’s spouse, [children] and her mother.

23. The applicant presented her claims in her protection visa application [in] September 2014  (folios 4 to 65 of the Department File [number]), documents in support of the application submitted to the Department; a Departmental interview she attended [in] October 2015 (folio 64 of Department File [number]), submissions to the Tribunal from her current adviser including a statement made by the applicant and at her Tribunal hearing on 13 December 2016. 

24. The applicant claimed in her protection visa application that her [Relative A, named], was brutally murdered along with his [family] about a year ago in Islamabad. They were tortured and killed in their house and their bodies dumped in the bush around town. She claimed the killers showed no mercy, even to his [age] year old son, [named], who's [injuries and death specified in detail]. She claimed that he pleaded with the killers, as one of them has confessed, that he was hurting and that they should stop but they did not stop. She saw his blood splattered all over [the room]. It was very visible on the [furniture]. She loved them all but [this child] was the special one. They played together and watched TV shows of his choice.

25. The applicant claimed the police caught some of the alleged perpetrators and claimed that [Relative A] was killed along with his family by one of their relatives for money. It is the [Relative B] and his associates. According to police, the mastermind of the slaughter wanted her “son” (sic) to give him money and his other assets. The applicant claimed that the police in that country usually resolve cases by extracting a confession and assigning a cause that fits one of the typical narratives for their own convenience even if it defies logic. She was not surprised to learn that the alleged killer of her [Relative A] and [his family] was someone from within the family.  She is not sure though that he organised the slaughter of “her children” (sic) for money. The alleged killer and his family are well off and no one even in that country can be that fool to think that they could pull off a scheme like that. It was clearly a hate crime. The applicant claimed that she knew that she, her mother, [Relative A][and other family members] never fitted into the ranks of those around them but she underestimated the animosity and hatred that was there in their hearts. Her [Relative A], half [Ethnicity 1], with distinct looks and values probably never belonged there. They were obviously hated for who they were and were slaughtered. The applicant claimed that she, along with her mother, spouse and children came to Australia a few weeks ago to settle the inheritance of her late [Relative A’s] properties in [Australia]. Her other siblings are outside Pakistan, with [one] living in [Country 1] and her [Relative A] in [Country 2]. She has been pursuing justice for her murdered [Relative A] and his children and now the killers of her [Relative A] are threatening to kill her and the rest of the family.

26. The applicant claimed her [Relative A, named], was [an occupation 2] and was posted to Australia by [his company] in 2002. He subsequently became an Australian citizen along with his wife and children and settled in [named city]. He was then offered a good job by a [similar] company in Pakistan and moved to Islamabad along with his family. He was soon promoted to senior positions.  She claimed her [Relative A] was a liberal minded person and was  very outspoken about his views. This did not always go well with people around him and he got all sorts of labels from the narrow minded, intolerant bigots who associate any deviation from their particular ideology as an attack on their faith and way of life. The applicant repeated the details above regarding the murder of her [Relative A] and his family, the authorities apprehension of the alleged perpetrators and her lack of surprise that it was someone within the family because of their dislike of her [Relative A] being half [Ethnicity 1]. 

27. The applicant claimed that they have managed to keep the killers in custody through various means so far but there is a clear bias among many officials who are helping the killers because of their contacts and paying bribes to the corrupt officials. She fears that the killers could be out soon because of the collusion of certain government officials who also see them as the 'odd' ones. The alleged killers have strong supporters with a will and ability to harm her and her children and they have explicitly shown their intentions through the threats they have received. She claimed her mother, who is included in the application, is an old woman with a heavy heart and not much to live for.  She does not want to see more of her children and grandchildren murdered by those who hate them for being more affluent and different.

28. The Department also received a statement made by the sixth named applicant which included the identical claims and detail as provided by the applicant in her protection visa application.  

    1. My [Relative A’s] murder by [Mr A] and his subsequent arrest has resulted in [Mr A] and his family seeking every measure possible to induce our family to drop the charges of murder against him.

    2. While we were in Pakistan, my mother, as the head of our family was in charge of instigating proceedings against [Mr A] and she hired and paid for lawyers in order to get [Mr A] jailed. In Pakistan, according to Islamic law and Pashtun culture it is possible for a family to forgive a murderer, or receive a payment instead of the murderer being jailed or executed for their crime. This I understand is different to the law in Australia. It is for this reason that my family and I have been experiencing such grave pressure and threats in order to drop the charges against [Mr A].

    3. [Mr A] comes from a ruthless family. [Mr A’s] mother went to the scene of the murder and helped clean up the scene in order to protect [Mr A]. [Mr A] made this statement to police, and it was reported in a Pakistan newspaper. I am still in the process of trying to locate the article where this was reported. The families bad character is further evidenced by the fact that [Mr A] hired professional murderer's to kill my [Relative A] and his family.

    4. [Mr A] not only has the support of his family in trying to force us to withdraw proceedings, but also the professional killers he hired. The men who have been charged along with [Mr A] also have previous convictions of murder and are professional killers who have also been excerpting pressure on our family to withdraw the charges.

    5. Since we have been in Australia my [Relative C], has taken over my mother's role of being in charge of proceedings against [Mr A]. Due to this he has received threat letters and telephone calls, he has been threatened by [Mr A’s] mother outside court in order to try and pressure him to withdraw the chargers against [Mr A]. He has received threat calls from the paid killers, he has been offered money to withdraw charges and they have also sent third parties to try and convince him to withdraw the charges. Due to his fears for his safety he has hired private security guards due to his fears for the security of himself and his family. [Relative C] has private security guards who escort him to and from work and are also at work. His [relative, named], works with [Relative C] and thus is constantly covered by security from the security guards. [Relative C] separated from his wife [time] ago and since this time, his [specified children] have remained with [Relative C], while [another child] has remained with the mother. Due to the risk posed to his [child] is in the process of trying to send him to either [of two countries] as he feels that he is at great risk of being killed or harmed by [Mr A’s] family.

    6. We have been contacted by members of [Mr A’s] family in order to excerpt pressure on my mother to tell [Relative C] to withdraw proceedings against [Mr A].

    7. We are extremely concerned for our safety if we return. We feel there is a real risk that [Mr A’s] family or the murder's connections will kill us or harm us as a result of us refusing to withdraw the charges against [Mr A].

    8. Even, if my mother or I are not killed, one thing that is for certain is that [Mr A’s] family and the paid killers connections will continue to excerpt extreme pressure on my family, and in particular on my mother in order for the charges to be dropped. We will at minimum certainly face constant threats and harassment from the families, though it is likely that one of us will be harmed.

    9. My mother's health is not good and she is extremely frail. She is suffering [from several specified health conditions] amongst other problems. It is certain that if we return to Pakistan that my mother will be subjected to at minimum grave harassments and threats from [Mr A’s] family and the paid murder's associates in order to try and force her into withdrawing proceedings against [Mr A]. Though threats and harassment do not pose, on their own, a threat to the life of a healthy person, given my mother’s serious [health condition] and other medical complaints, these threats could be fatal to my mother. She has been advised by her [specialist] in Australia that increased stress and anxiety will aggravate her [condition] and overall health, and clearly if she returns to this situation where we will at minimum receive harassment and threats, and where my mother will not feel safe anywhere this could be fatal for her. My mother’s medical conditions require constant monitoring and she has to have regular medical check-ups to monitor her conditions. Failure to attend these medical appointments could be fatal.

    10. The police in Pakistan cannot provide me and my family with adequate protection. They do not have the power to protect us. My [Relative C] has had to hire personal security guards due to the Pakistan police not being able to protect him.

    11. Relocation to another part of Pakistan is not a viable option for me and my family, We have lived all our lives in KPK (though my mother did live in my [Relative A’s] home in Islamabad for a period with my [Relative A] before his murder) and [Mr A’s] family are also from the same village and pose a great threat to us there. [Mr A’s] family also have a home in Islamabad which means that we would face a threat in Islamabad. Given the threat posed to our family that has already resulted in the murder of my [Relative A], and the frail state of my mother’s health, my mother and my family would feel a grave risk in these parts of Pakistan in particular, but further would face threats in all parts of Pakistan. It would not be reasonable to expect us to relocate to another part of Pakistan as my mother's stress levels and anxiety would increase in all parts of Pakistan. [Mr A’s] family will continue to excerpt pressure on our family wherever we go in Pakistan and given my mother's precarious health, her stress levels/fear will greatly increase wherever we move in Pakistan and these increased stress levels/fear will likely be fatal for my mother.

1. The primary issue in this review is whether there is a real chance that, if the applicants return to Pakistan, they will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. The Tribunal accepts on the evidence before it, including the reports from both Pakistan and Australia, that the applicant’s [Relative A] and his family were murdered in October 2013  allegedly by [Mr A], the [Relative B], and a number of others he had hired to assist him with his fatal plan.

4. The Tribunal accepts the applicant’s claims that she was approached by the families of those accused and charged with the murder of her [Relative A] and his family in order to persuade the sixth named applicant to pardon them of this crime. The Tribunal accepts that in Pakistan, the Qisas (retribution) and Diyat (blood money) law operates to allow people accused of murder to escape punishment if they are pardoned by the victims heirs. According to the independent information, the qisas and diyat ordinances, which were introduced in 1990, includes the right for the victims kin to pardon those accused of offences against the human body and for financial compensation. In a report from Dawn titled Qisas and Diyat: Legal reform to ensure murderers get away no more ( , critics contend the law allows the wealthy and powerful to walk scott-free from homicide convictions either by intimidating their victims loved ones, making them a financial offer that they cannot refuse, or both.

5. According to the applicant’s evidence in the hearing, prior to departing Pakistan [Mr A’s] mother had called her once directly in a non-threatening way and asked her to ask the sixth named applicant to settle the matter with money or property so that [Mr A] could be freed. She also claimed the women of the families of the other people charged with [Mr A] came to her house once, a few months after her [Relative A’s] death, and also asked her to ask the sixth named applicant to forgive their sons. The applicant also claimed that apart from these two visits, [Mr A’s] mother had contacted her [relatives], who were also [Mr A’s relatives] as they are from the same family, as well as her in-law’s, in an effort to persuade her and her mother to settle this mater but her mother refused preferring to let the court decide.

6. Based on the independent information discussed above, the Tribunal accepts that the applicant received these two visits requesting that she discuss pardoning her [Relative A’s] murderers with her mother, the sixth named applicant. It also accepts as plausible that other family members, including members of both the applicant and [Mr A’s] mother’s family, were approached in an effort to mediate between the two parties on this issue.

7. The applicant also claimed that after the families of the other men implicated in the case had visited her, they called with the intention of having contact with her mother to settle this matter but she told them not now. The Tribunal found the applicant’s evidence regarding these calls she received from these families to be vague. When asked how many times they contacted her on the phone, the applicant claimed every time there was a hearing or some evidence was given in court. She provided no indication as to the number of calls she received, the frequency of these calls or over what period of time they were received. The Tribunal therefore does not accept the applicant received any calls from the families of the other men, as she claimed.

8. Further, the Tribunal found the applicant’s evidence regarding the nature of these alleged calls contradictory. When asked what they would say, she claimed the only thing they wanted was to settle this out of court. In response to the Tribunal’s question as to whether she was threatened at all prior to leaving Pakistan, the applicant stated not directly. Yet, when the Tribunal questioned if she was threatened indirectly, the applicant subsequently claimed “they” would say they should settle this down or some harm could happen to her children. The Tribunal finds this to be a direct threat and not consistent with the applicant’s earlier evidence in the hearing that she did not receive any direct threats prior to coming to Australia.

9. The Tribunal accepts the applicant’s initial evidence in the hearing that prior to her and the other applicants departing Pakistan in July 2014, there was not much contact and that they did not receive any direct threats. As such, the Tribunal does not accept the applicant’s claim in her protection visa application that she was threatened with being killed, as well as her family, because she had been pursuing justice for her [Relative A] and his family. Nor does the Tribunal accept the applicant received any indirect threats from the family members of the other accused men who allegedly called her in relation to settling the matter. The Tribunal also finds, on the basis of the evidence provided by the applicant in the hearing, that she and the sixth named applicant were not receiving constant threats and intimidation either by the family of [Mr A] or the families of the other accused.

10. The Tribunal notes in the applicant’s protection visa application she claimed that she managed to keep the killers in custody through various means so far but there is a clear bias among many officials who are helping the killers because of their contacts and paying bribes to corrupt officials. Yet, in the hearing the applicant’s evidence was that [Mr A] had been refused bail on several occasions and he continues to be detained while the case is proceeding. Although the Tribunal accepts that two of the accused may have been released on bail, as the applicant asserted, leaving [Mr A] and another accused still in jail, the Tribunal finds that there is nothing to suggest any bias among officials or that officials are helping the killers either because of their contacts or paying bribes to corrupt officials. For the same reasons, the Tribunal does not accept the killers will be out soon because of the collusion of certain government officials. While the Tribunal accepts two of the accused killers may have been released on bail, there is nothing in the applicant’s evidence to suggest they have been in contact with her or any members of her family, including her [Relative C] who has assumed responsibility for managing the case since their departure from Pakistan.

11. The applicant claimed in the hearing that after coming to Australia, the threats and pressure on her family and the sixth named applicant increased and became more aggressive. She claimed “they” are approaching her [relatives] and people looking after the case, and pressuring them to ask her mother to come back and settle this down and they have received threats. When asked what was done to put pressure on her [relatives] and others, the applicant claimed there were calls and visits to them. The Tribunal finds the applicant’s evidence as to these alleged calls and visits to her [relatives] and others vague and lacking in detail. She was unable to provide any indication of when these calls and visits began, other than it was after she arrived here. Further, while the applicant claimed it got worse after the first bail application was rejected, with them calling her [Relative C] again and again, as well as family and friends, the Tribunal found the applicant’s response to the Tribunal’s questions as to how often her [Relative C] and others received these calls unconvincing. Initially the applicant did not answer the Tribunal’s question, instead stating merely different occasions, through different people. However, later she claimed earlier it was once a week that people called and once a month they visited him or they called him with “elderly people” and it got worse when the bail application was rejected.

12. Further, the Tribunal notes in the statutory declaration made by the applicant, submitted to the Tribunal, she claimed that her [Relative C] who took carriage of the proceedings against [Mr A] once they came to Australia, had also received threatening letters, in addition to telephone calls and that he had been offered money to withdraw the charges, yet she made no mention of these particular problems during the hearing. The Tribunal notes the applicant’s response, when asked if anything had happened to her [Relative C] apart from the threatening calls, was no.

13. The applicant also claimed in her statutory declaration that was submitted to the Tribunal that “we” had been contacted by members of [Mr A’s] family in order to exert pressure on the sixth named applicant to tell [Relative C] to withdraw the proceedings. However, the Tribunal finds this inconsistent with the applicant’s evidence in the hearing that she had not had contact with anyone in [Mr A’s] family or anyone associated with them since coming to Australia. As such, the Tribunal does not accept the applicants have had any contact with [Mr A’s] family since coming to Australia, as claimed.

14. Based on the above, the Tribunal does not accept the applicant’s claim that since coming to Australia, the threats and pressure on her family has increased. It does not accept on the evidence before it that the applicant’s [Relative C] who has taken charge of proceedings in the sixth named applicant’s absence, has been threatened, either in person or via calls or letters. While the Tribunal accepts as plausible the applicant’s claim that her [Relative C] may have been verbally abused by [Mr A’s] mother outside court two or three months ago, it does not accept that he was threatened in order to try and persuade him to withdraw the charges, as the applicant had initially claimed in the statutory declaration submitted to the Tribunal, given that this was not consistent with her evidence in the hearing.

15. As the Tribunal does not accept that the applicant’s [Relative C] was threatened as claimed, it does not accept he hired private security for himself and his family to escort him to and from work and also to be present at his workplace, due to fears for his safety arising for these alleged threats. The Tribunal has taken into consideration the invoice from [a company] dated [ni] September 2016 for two armed guards for a period of [number] days and while it accepts the applicant’s [Relative C] may have hired security as evidenced by the invoice, it does not accept that this was because of any threats he received in relation to the case against [Mr A] and the others accused of killing the applicant’s [Relative A] and his family. The Tribunal notes the applicant claimed in the hearing that her [Relative C] had security for business reasons before this. Further, as the Tribunal put to the applicant, independent information suggests security guards are widely used by Pakistani citizens due to deteriorating security conditions in the country and an increase in kidnapping and extortion threats.

16. It follows, that as the Tribunal does not accept the applicant’s [Relative C] was threatened as claimed, it does not accept that he reported the threats or pressure on him to the police and was told to handle it himself because if they did act it would change everything for him. The Tribunal also found the applicant’s evidence in the hearing regarding this alleged report made to the police vague. She was unsure as to whether he actually did go to the police and thought it was 6 or 7 months ago that he went to the police, if he did. Additionally, as the Tribunal put to the applicant, it finds it implausible, based on the applicant’s evidence, that her [Relative C] would wait nearly two years before going to the police to report the threats he had allegedly received since she departed the country in July 2014. The Tribunal does not accept the applicant’s explanation that at that time her [Relative C] had to travel for business so he was worried about his [child]. As the Tribunal does not accept that the applicant’s [Relative C] was threatened as claimed it also does not accept that the applicant’s [Relative C] is in the process of trying to send his [child] overseas for this reason.

17. The Tribunal has had regard to information in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, regarding the interviews she had in relation to her [temporary] visa application because of concern the Department had that she and her family would seek to remain in Australia. According to the decision, she had stated that their lives were not in danger, that “they” would not take any negative steps because they are in the media’s eyes and she was not worried or bothered. When the Tribunal asked the applicant to explain this response in light of the fact she lodged a protection visa application relatively soon after arriving in Australia, and her evidence was that prior to her departure there had been some pressure put on her and her mother to pardon those responsible for her family’s murder, the applicant stated that when they came to Australia her family encouraged her not to go back so she applied. As the Tribunal put to the applicant in the hearing, it finds her lodgement of a protection visa application less than two months after arriving in Australia, claiming to fear harm if returned to Pakistan, after stating she felt there was no danger for herself and she was not worried or brothered or concerned for her safety, raises serious doubts about the credibility of her claims regarding the nature and level of threats she and those associated with her received from various people including [Mr A’s]  family and the family of the other people charged with her [Relative A] and his family’s murder.

18. Considering all the evidence before it, while the Tribunal accepts as plausible that the applicant and her mother had some contact from the families of those accused of the applicant’s [Relative A] and his family’s murder, particularly from [Mr A’s] family (who they are also related to), aimed at pardoning the perpetrators of this crime, the Tribunal does not accept that the applicant, the sixth named applicant, the applicant’s [Relative C] or anyone else has been threatened by the families of the accused or subjected to constant intimidation and harassment either in Pakistan or since arriving in Australia. The Tribunal accepts that there is more than a remote chance that on return to Pakistan, the applicant and possibly the sixth named applicant, may be again approached by the family of [Mr A] and/or the families of the other accused, in an effort to have the charges against them withdrawn. The Tribunal does not accept that such contact constitutes serious harm within the meaning of s.91R(1) of the Act. The Tribunal has considered whether the applicants would be subjected to extreme pressure in the form of constant threats, intimidation and harassment from the families, to drop the charges, however given the applicant’s evidence in the hearing that nothing happened prior to their departure from Pakistan, after her mother refused to withdraw the charges, and the Tribunal’s findings regarding the alleged threats and harassment post their departure from Pakistan, the Tribunal does not accept that the applicants would be exposed to such treatment.

19. The Tribunal also finds that the claimed harm the applicant fears from the families of those accused of her [Relative A] and his family’s murders, in the form of pressure or intimidation to pardon those responsible for this crime,  is not for one of the five Convention reasons. While the applicant’s adviser agreed with the Tribunal, he also suggested that the harm the applicant feared may be for reasons of her membership of a particular social group connected with the operation of the Qisas and Diyat law. The Tribunal has considered whether such a group could constitute a particular social group within Pakistan society, paying particular reference to Applicant S v MIMA [2004] HCA 25. In that case at [36] Gleeson CJ, Gummow and Kirby JJ stated

    First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.

20. A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.

21. Justice McHugh in Applicant S stressed the necessity of the group being cognisable within the society in the following statement:

    A number of factors points to the necessity of the group being cognisable within the society. Given the context in which the term “a particular social group” appears in Art 1A(2) of the Convention, the members of the group, claimed to be a particular social group, must be recognised by some persons - at the very least by the persecutor or persecutors - as sharing some kind of connection or falling under some general classification. That follows from the fact that a refugee is a person who has a “well-founded fear of being persecuted for reasons of ... membership of a particular social group”. A person cannot have a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention unless a real chance exists that some person or persons will persecute the asylum-seeker for being a member of a particular class of persons that is cognisable - at least objectively - as a particular social group. The phrase “persecuted for reasons of ... membership” implies, therefore, that the persecutor recognises certain individuals as having something in common that makes them different from other members of the society. It also necessarily implies that the persecutor selects the asylum-seeker for persecution because that person is one of those individuals.[1]

    [1]   Applicant S v MIMA (2004) 217 CLR 387 at [64] per McHugh J.

22. His Honour added that it did not follow that the persecutor or anyone else in the society must perceive the group as ‘a particular social group’[2] and explained that it is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a ‘uniting’ feature or attribute, and the persons in that class are cognisable objectively as a particular social group.

    [2]   Applicant S v MIMA (2004) 217 CLR 387 at [64] per McHugh J.

23. The Tribunal accepts that there may be a collection of people who are the next-of-kin of victims of crimes affecting the human body, such as murder, who have the right to make a compromise with an offender to forgive them with or without any monetary compensation in the form of Diyat.  The Tribunal accepts that members of this group have the common attribute of being the family members of victims of these crimes and that this common attribute is not a shared fear of persecution. It also accepts on the country information before it, including the reporting of crimes for which the victims of next-of-kin have pardoned the perpetrator, including particularly cases of honour killings, establishes this particular group with a profile within Pakistani society.  However, the Tribunal finds that the essential and significant reason for the harm the applicant fears from the families of those accused of the murder of the applicant’s [Relative A] and his family is because of her, or her mother’s, specific actions in refusing to withdraw the charges against those accused of this crime and not their membership of this particular social group. The Tribunal is satisfied the motivation of the families of the accused in putting pressure on the applicant, and particularly the sixth named applicant, is purely on an individual basis and they are not motivated in harming them because they are one of a group of people whose next of kin had been a victim of a crime affecting the human body.

1. The Tribunal does not accept that the applicant’s [Relative A’s] death and that of his family was a hate crime, as the applicant claimed in her protection visa application. According to the applicant’s protection visa application, her [Relative A] was murdered because of “their” dislike of him being half [Ethnicity 1]. However, the Tribunal notes that in the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, it states that the applicant identified her ethnic group as Pashtun and also that both of her parents were Pashtun. In regard to the applicant’s claim in her protection visa application that her mother was [Ethnicity 1], the applicant had explained during the interview with the delegate (as recorded in the decision) that her [ancestor] who was [Ethnicity 1], had migrated to Pakistan many years ago and since arriving there had married a Pashtun and fully integrated into the Pashtun culture. The applicant’s evidence was that her mother, the sixth named applicant, considers herself Pashtun and neither she or any of her family had experienced problems because of their [Ethnicity 1] background. The Tribunal notes the applicant provided consistent evidence in the hearing that the sixth named applicant did not experience any difficulties because she is [Ethnicity 1] or half [Ethnicity 1]. Further, the applicant confirmed that if they return to Pakistan now they would not experience any problems for this reason. As such, the Tribunal does not accept that the murder of the applicant’s [Relative A] and his family was for reasons of either her [Relative A] or the applicant’s family’s [Ethnicity 1] heritage. Nor does the Tribunal accept that the applicants will face a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of their real or imputed [Ethnicity 1] ethnicity.

2. The Tribunal also does not accept that the applicant’s [Relative A] (and his family) were targeted because he was a liberal minded person and very outspoken about his views, and as a result he got all sort of labels from narrow minded, intolerant bigots, as the applicant claimed in her protection visa application. The Tribunal notes the applicant did not repeat this claim in the hearing, nor does there appear to be any references to her [Relative A’s] liberal views or outspokenness in the interview with the delegate as recorded in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant. The Tribunal has also taken into consideration the articles the applicant submitted to the Department and Tribunal regarding the murder of her [Relative A] and his family and does not accept on the basis of those reports regarding this heinous crime, which indicate various reasons behind [Mr A’s] actions including personal reasons such as the applicant’s [Relative A’s] opposition to [Mr A’s] engagement to a divorced woman and [Mr A’s] desire to give his in-law’s a residence in Islamabad, that the applicant’s [Relative A] and his family were killed because her [Relative A] was a  liberal minded person.

3. While the Tribunal accepts the applicant’s [Relative A] was an affluent person, based on the reports provided by the applicant, it does not accept the applicants will be targeted on their return to Pakistan for this reason by either the accused killers, their families or anyone else. In respect of those responsible for her [Relative A] and his family’s murder, the Tribunal notes on the applicant’s evidence two of them are in jail, one of whom is [Mr A] who was motivated to harm the applicant’s [Relative A] and his family for personal reasons, namely to facilitate his marriage, as noted above. Further, there is nothing in the evidence before the Tribunal to suggest that the applicant or any of the applicants have had any contact with those accused who continue to be imprisoned and given their current circumstances, the Tribunal does not accept they would be pursuing the applicants to seriously harm them for reason of their apparent wealth. Similarly, while the applicant has claimed two of the accused have been released on bail, there is nothing to demonstrate any ongoing interest in the applicants by them for any reason including their affluence. In regard to the families of those accused of the applicant’s family’s murder, their limited contact with the applicant has been focused on obtaining a pardon for their family members and does not suggest any interest in the applicant/s for any other reason, including their wealth. More generally, the Tribunal finds it speculative that the applicants will face a real chance of serious harm on their return to Pakistan because of their profile as affluent Pakistanis. Taking into consideration the applicant’s evidence and the reports submitted by her, the information suggests the applicant belongs to a well-to-do family generally and there is nothing in the evidence before it to suggest that the applicants have been targeted in the past for this reason. Therefore, for the reasons discussed above, the Tribunal does not accept that the applicants face a real chance of serious harm, including being murdered, now or in the reasonably foreseeable future, by those who hate them for being more affluent (as claimed in the protection visa application) or for reasons of their membership of a particular social group of affluent or wealthy Pakistanis.

4. The Tribunal accepts the applicant’s evidence that she initially had no intention of applying for protection when she came to Australia but that she was persuaded by family in Pakistan and Australia to stay for peace of mind. The Tribunal appreciates given the brutal and shocking nature of the applicant’s family’s death, that she and her family may prefer to have some distance from the place where this horrendous event occurred. It also accepts the sixth named applicant particularly has a strong subjective fear as result of what happened to her son and his family and that this may be eased to some extent by being away from Pakistan. However, for the reasons discussed above, the Tribunal does not accept that the applicants face a real chance of serious harm, including being killed, now or in the reasonably foreseeable future, if they return to Pakistan, by the families of [Mr A] or the other men accused of killing the applicant’s [Relative A] and his family, the people accused of  this crime, or anyone associated with them or their families or anyone else or that the harm they fear is Convention related.  

5. The Tribunal notes the evidence that was submitted in respect of the sixth named applicant’s health conditions, which was raised by the applicant’s adviser as being relevant in considering complementary protection. Neither the applicant’s adviser, or the applicant raised the sixth named applicant’s health condition in respect of the refugee claims presented but for completeness the Tribunal finds that there is no causal connection between the potential harm feared in respect of the sixth named applicant, ie [her health condition], and any of the Convention grounds.

   Complementary protection obligations

6. On the basis of the applicants claims to be nationals of Pakistan and their Pakistan passports, the Tribunal finds that Pakistan is the applicants receiving country for the purposes of s.36(2)(aa).

7. As the Tribunal does not accept that the applicants are refugees as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Act.

8. Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal above, the Tribunal does not accept that what the applicants might experience upon return to their home in Pakistan will involve a real risk of being arbitrarily deprived of their life; having the death penalty carried out on them; being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. As discussed above, although the Tribunal accepts that the applicant may have been approached by the family of [Mr A] and the others accused of murdering her [Relative A] and his family, in attempts to have the sixth named applicant pardon the perpetrators of this crime, the Tribunal does not accept that the applicant, the sixth named applicant, the applicant’s [Relative C] or anyone else has been threatened by the families of the accused or subjected to constant intimidation and harassment either in Pakistan or since their arrival in Australia. The Tribunal also does not accept the applicant’s claim in her statutory declaration that the killers themselves are threatening to kill her and the rest of her family. Nor does the Tribunal accept on the evidence before it that there has been any contact from the two accused who the applicant claimed were released on bail. The Tribunal has considered whether the applicants would be subjected to extreme pressure in the form of constant threats, intimidation and harassment from the families, to drop the charges against those accused of killing the applicant’s [Relative A] and his family, on their return to Pakistan. However, based on the findings and reasons discussed above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that the applicants would be exposed to such treatment or to significant harm as defined in subsection 36(2A) of the Act from the families of either [Mr A] or the other accused men or anyone associated with them. The Tribunal accepts that upon return to Pakistan, the applicant and possibly the sixth named applicant, may be again approached by the family of [Mr A] and/or the families of the other accused, in an effort to have the charges against them withdrawn. However, the Tribunal does not accept that such contact constitutes significant harm as defined in subsection 36(2A)(1).

9. The Tribunal has taken into consideration the submissions of the applicant’s adviser that due to the sixth named applicant’s health condition, threats and pressure applied to her to grant mercy to those accused of killing her son and his family, could result in her suffering a [medical episode], which clearly is significant harm. The Tribunal accepts on the medical evidence before it, and the applicant’s evidence in the hearing, that the sixth named applicant suffers from a number of health conditions including [two conditions mentioned]. The applicant claimed that the sixth named applicant had suffered from [medical] problems since six or seven years ago and had two to three [medical episodes] in Pakistan, which she received treatment for. She stated that the sixth named applicant’s [medical condition] was being managed in Pakistan and there was no issue regarding whether she would receive medical treatment in Pakistan as it was always available there and the doctors were good. The Tribunal notes in the letter from [Doctor A], the sixth named applicant’s [specialist], dated [in] November 2016, it was stated that it would be best the sixth named applicant not be subjected to stress as it may aggravate her [medical condition] and her overall health. The adviser submitted in the hearing that if the sixth named applicant was subjected at minimum to harassment and threats, given her serious [condition] and other medical complaints, the threats could be fatal to her.    

10. The Tribunal finds that any health problems the sixth named applicant may experience as a result of any contact she, or the applicant, may have on their return to Pakistan with the families of [Mr A] or the other accused men seeking their pardon does not constitute significant harm on the basis that there is no intention by the families to cause significant harm as defined in s.36(2A). There must be an actual, subjective, intention on the part of [Mr A] and the other accused’s family members to bring about the harm by their conduct, which in this case is to cause her a [medical episode] which may be fatal to her. The Tribunal has found there have been only a few occasions in the past where the applicant, as opposed to the sixth named applicant, has been approached in a non-threatening way, by the families of the accused, seeking their pardon and does not accept if this were to happen on their return to Pakistan this would necessarily result in a [medical episode] or worsening of the sixth named applicant’s medical condition. Further, the Tribunal does not accept on the evidence before it that there is any intention on the part of those seeking the sixth named applicant’s pardon to intentionally cause her significant harm as defined in s.36(2A), including the arbitrary deprivation of life.

11. The Tribunal also does not accept, based on the findings and reasons above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is real risk they will suffer significant harm as a result of their profile as wealthy or affluent Pakistanis.

12. Having considered the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicants lives are threatened or that they will be arbitrarily deprived of their life; that the death penalty will be carried out on them; or that they will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicants meet the alternative provisions in s.36(2)(aa).

13. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Sydelle Muling
    Member