1517715 (Refugee)

1517715 (Refugee) [2017] AATA 594 (3 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517715
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Sydelle Muling
DATE:3 April 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 April 2017 at 11:04am

CATCHWORDS
Refugee – Protection visa – Pakistan – Social group – Inter-caste marriage – Divorced women – Single women – Refusal of arranged marriage – Credibility issues
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZBYR v MIAC (2007) 235 ALR 609
SZRGV v MIBP (2015) 318 ALR 450
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa [in] February 2015. The delegate refused to grant the visa [in] December 2015.
The applicant appeared before the Tribunal on 15 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – 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
The applicant claims to be a citizen of Pakistan who was born on [date] in Sargodha, Punjab in Pakistan. According to her protection visa application, she resided in [a] village in Sargodha district from birth to 1992; [suburb], [Town 1], Gujranwala from 1992 to 1999; [a] Hostel, Gujranwala from September 1999 to September 2000; [suburb], [Town 1], Gujranwala from September 2000 to September 2001; [another] Hostel, Gujrat from September 2001 to September 2004 and [suburb], [Town 1], Gujranwala from September 2004 to November 2011. The applicant completed [number] years education and is fluent in Urdu, Punjabi and English. She described her occupation before coming to Australia as [occupation]. She worked [in] Gujrat from September 2005 to September 2009 and [another workplace], Punjab from September 2009 to November 2011. The applicant departed Pakistan legally [in] November 2011. She was divorced in 2013. The applicant’s mother [and siblings] are residing in Pakistan. Her father passed away in October 2014.
The applicant presented her claims in her protection visa application [in] February 2015 (folios 2 to 45 of the Department File [number]), submissions from her previous adviser to the Department, a Departmental interview she attended [in] August 2015 (folio 98 of Department File [number]), submissions to the Tribunal from her current adviser including a statutory declaration made by the applicant and at her Tribunal hearing on 15 November 2011. The following is the statement made by the applicant attached to her protection visa application:
Background:
My name is [name] and I am a [age] year old female born in Sargodha which is located in the Punjab Province of Pakistan.
The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin (Pakistan). I will provide further information in relation to my present claims during my interview with the Delegate from the Department of Immigration and Border Protection (`the Department').
My ethnicity is Punjabi and I belong specifically to [Caste 1]. I belong to the Sunni branch of Islam. As far as I know, my mother and siblings continue to live in Pakistan. My father passed away [in] approximately October 2014.
I cannot return to my country of Pakistan due to my fear of being seriously harmed for the reasons which I state herein.
Why I left my country:
In 2011, I met my ex-husband ([Mr A]) whilst I was working [in] Gujrat, Punjab. At the time, my ex-husband was accompanying his [relative]. After that initial meeting, my relationship with [Mr A] developed and we began dating as boyfriend and girlfriend. [Mr A] belonged to [another] case, which is considered a lower caste. I am from a [Caste 1] family and my caste is said to be higher.
My family is very strict and would never permit me to marry out of my own caste, and against their wishes. Nevertheless, I loved [Mr A] and continued with the relationship without any of our relatives knowing. I knew that both our families would not accept a marriage between us and therefore [Mr A] and I planned to go abroad where we could live together. [Mr A] and I married in secret approximately one (1) month before we left the country. We had a very small Islamic marriage. It was myself, [Mr A], the Imam and [number] of [Mr A]’s friends who were needed as witnesses. Up until the point where [Mr A] and I left Pakistan to come to Australia on a [temporary] visa, neither of our families was aware of our marriage. However there were some friends who knew this. I was very afraid of telling my parents because [Caste 1 members] are known to be violent and reputation means everything to them, including my parents. I knew that if my marriage was discovered, I would certainly be killed. This is not unheard of in Pakistan where honour killings are a common occurrence.
Once we arrived in Australia, [Mr A] and I began living together. I still could not build up the courage to tell my family of my marriage because I was very afraid of the consequences. Approximately [number] months after we arrived in Australia, one of my friends called me in a panic. She said that she had been speaking to my mother over the telephone and had accidentally told her that that I was living with my husband. According to my friend, when my mother became enraged and began asking my friend what she was talking about, my friend cut the line. My friend immediately called me to explain her mistake and after five (5)minutes my brother called in a rage. He yelled at me and verbally abused and threatened me. He said that I had dishonored the family and that he would find my husband's family and seek revenge. Furthermore, my father had a [medical condition] as a result of news. I was very afraid and told [Mr A]. [Mr A] began fighting with me asking why I had told my family and blamed it all on me. At this point, I was too afraid to call back my family. My brother then started investigating and spoke to my [colleagues] and my closest friends and eventually found out what village [Mr A] was from. My former colleagues [contacted] me and told me to warn [Mr A]’s family. I later learnt that my brother went to the village and started asking the neighbours where [Mr A]’s house was and also in anger told them that [Mr A] had married his sister without the families' permission. Due to [Mr A]’s family constantly working the farmlands, my brother could not get in contact with them. [Mr A]’s family then contacted [Mr A] and argued with him as they said that the neighbours had told them that my brother had come in search of them. They also found out that the reason for his aggression was that we had married in secret. [Mr A] and I continued to fight and he stated that I could have done more to stop my brothers from going to his house. I tried to call my family members such as my sisters on some instances but they hang up as soon as they heard my voice.
I come from a very close-knit family and was in a terrible mental state thinking about my relationship with them. I really wanted to fix things and give them a chance to hear what I had to say. Since they were not answering my phone calls and willing to speak to me, I decided to go to Pakistan for two (2) weeks to attempt to talk to them and assess the situation. From the airport I went straight to my family home with my baggage. My brother opened the door and was shocked to see me. Immediately he began shouting at me. My [Relative 1] came out from the house [nearby] where she lives and also started asking me what I was doing there. My brother did not allow me to go inside the house and I felt humiliated. Furthermore, my [family member] was also abusing me. I was standing in the street and had nowhere to go. My [Relative 1] had no other option but to allow me to stay at her house for two (2) days. During this time, she attempted to resolve matters but instead she was abused by my brothers and father for allowing me to stay at her house. After two (2) days my [Relative 1] demanded that I leave her home also. I then went to stay at a friend's home for the duration of my stay. During this time, I had asked my friend to call my mother and try to pacify my family but she refused to do so given that she had already been abused by my family for having kept my marriage a secret from them. After I came to Australia, I attempted to contact my family a few times. My husband's attitude towards me also worsened as he was also on bad terms with his family. Ultimately, he decided that the choice was between me and his family, and he chose them. We officially divorced in 2014.
I heard that my father died approximately [number] days after my divorce. I was called [and] informed that my father had been brought into the hospital and died from a [medical condition]. I called my brother after hearing about my father's death. My brother said that it was me who was responsible for the death of my father and not to dare to call the house again. I spoke to my sister around this time also. She said that they are aware that I am divorced. She said that my brothers had said that anyone who is in contact with me should not bother contacting other members of the family Accordingly, I have not been in contact with any of my family members.
What I fear might happen if! go back to my country:
I am afraid of going back to Pakistan as I am certain that I will be killed or seriously harmed by my family who believe that I have destroyed their reputation. I am also blamed as being the reason for my father's death. I am also afraid of the community who are not accepting of divorced women such as myself.
Who I think will harm or mistreat me if I go back:
I am afraid I will be harmed and mistreated by my family [members]. I also fear the community at large.
Why I believe they will harm or mistreat me if I go back:
I believe that I will be harmed and mistreated due to my act of marrying without my family's consent. My family believes that I have dishonoured them and have threatened to harm me if I were to return. I have attempted to reconcile with them on one instance when I returned to Pakistan but my brother turned me away from the front door and did not even allow me to meet with my father or mother. My circumstances are now more severe following the death of my father some months ago. According to my family members, I am the one who is to blame for my father's death. In my country, women are not respected and treated equally to men. There have been many instances where women are killed as a result of honour killings for marrying without parents' consent or for other reasons. There is no reason as to why this would not happen to me.
Furthermore, I am certain that I will be harmed and mistreated on account of me being a divorced woman. There is a very negative social stigma against divorced women in country and many stereotypes we are forced to deal with. My circumstances are even more serious given that I had married without my parents' consent and then divorced this man. The community will think that there is a fault with me. I will not be able to live in the society peacefully and without harm. I will feel ostracised and isolated particularly given that it is not possible to live without male support in Pakistan.
Why I believe that the authorities in my country will not protect me if I go back:
I cannot seek protection from the authorities as they have bigger problems that they are facing in the country. They cannot protect the hundreds of people in Pakistan who are killed by militants, how can they protect a divorced woman such as me?
Why I think I will suffer significant harm:
I believe that I will suffer significant harm on the basis of having received threats to my life by my family. They have humiliated me and insulted me when I returned to Pakistan in an attempt to repair my relationship with them. They did not let me into the house and I felt demeaned. Furthermore, my circumstances are worsened now as I am divorced. I am fearful of being seriously harmed on account of my being a single divorced woman without any familial support.
Why I cannot relocate:
I cannot return to Pakistan and relocate elsewhere. There are various factors which I need to consider when assessing relocation. Firstly, I have serious safety concerns. Everyone knows that it is not safe for a single woman to be living on her own. This is particularly so for a divorced woman. Wherever I live, everyone will discover that I am without a family. I am scared of being harassed and assaulted. Furthermore, nowhere is safe in Pakistan due to the ongoing militant attacks. Nowhere is safe to relocate.
Furthermore, there are other practical considerations when I consider relocation. Firstly, I don't have the money or financial capacity to live elsewhere and sustain my livelihood. I did work as [occupation] in the past but I have forgotten all that after the difficult period I have gone through. In Pakistan, particularly for women, it is not possible to relocate without family support, none of which I have. Lastly, I am in a very vulnerable mental state at this moment. I always think about my family and feel alone here but I have no other option. If I were to return to Pakistan, these feelings would only be further heightened especially in a climate of fear.
Ultimately, relocation is therefore not a viable option for me.
Other matters that I would like the Department to take into account:
Many of the dates that have provided in my Protection Visa Application and this Statutory Declaration are approximates. Right now, I am feeling emotionally distressed and I have tried my best to recall everything. I will soon be seeking professional medical support to help me copy with my difficult time.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Pakistan, there is a real risk she will suffer significant harm.
The delegate had no concerns with the applicant’s identity, noting in the decision record that Departmental records confirm she holds a passport issued by Pakistan. The Tribunal is satisfied that the applicant is a national of Pakistan and has assessed her claims against Pakistan as her country of nationality.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 Pan 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.
In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

The applicant claimed in the hearing that she fears if she returns to Pakistan she will be killed by her family because her family offered to marry her to her cousin but she refused and she instead married outside her caste. She particularly fears her brother and [cousins] who are all against her because she has insulted the family by marrying outside the family.
The Tribunal does not accept the applicant’s claims regarding her marriage and the problems that she allegedly experienced as a result, are credible due to the numerous inconsistencies and deficiencies in her evidence regarding central aspects of her claims. In this regard, the Tribunal notes the decision of the High Court in SZBYR v MIAC (2007) 235 ALR 609 and the Full Federal Court in SZRGV v MIBP (2015) 318 ALR 450 that ‘information is related to the existence of evidentiary material or documentation, and that gaps, inconsistencies, defects or a lack of detail or specificity in evidence identified by the Tribunal in weighing up the evidence are not, of themselves, ‘information’.
The Tribunal finds the applicant’s evidence regarding the development of her relationship and eventual marriage to be unreliable and discrepant. In the applicant’s statutory declaration attached to her protection visa application she initially claimed that she and her husband met in 2011 while she was working [in] Gujrat. Yet, as pointed out to her by the delegate, according to her employment history provided in her protection visa application (which she confirmed during the hearing), she was not working in Gujrat at that time, which raised doubts about the credibility of this claim. The applicant subsequently claimed she had mistakenly said it was 2011 in her statutory declaration and that they first met in July 2009. She did not explain however how this effected the rest of her evidence to the delegate about the development of her relationship such as the fact that her husband proposed to her one month after they first met (which would have been in August 2009) and it was five to six months later that they were married, which would be December 2009 or January 2010 and not [in] February 2011 as she claimed in the hearing and as evidenced in the marriage certificate she submitted. Instead the applicant claimed in the hearing that it was in October or November 2010, seven or eight months after they met each other, that her husband proposed, which the Tribunal notes is not correct as if they met in July 2009, seven or eight months later is somewhere between January and March 2010.
Another example of an inconsistency in the applicant’s evidence regarding her relationship with her husband is her evidence in the hearing that after she was transferred to [Town 1] she regularly travelled back and forth to Gujrat, sometimes every Sunday, sometimes twice a month, sometimes thrice a month but definitely more than once a month, to see her husband. This is in stark contrast to her evidence in the interview with the delegate that once she went back to [Town 1] she only went once to Gujrat and saw her husband in person because it was too difficult to go by public transport. The Tribunal has considered the applicant’s response that while she was being interviewed she was very stressed because she was recently divorced and was sick and suffering [condition] but now one year later she is in a better condition to recall incidents and dates. While the Tribunal appreciates the applicant may have been feeling some stress as a result of her divorce which was finalised some six months before her interview, the Tribunal does not accept that this adequately explains the numerous deficiencies in the evidence she provided during the interview about significant yet basic personal details central to her application.
The Tribunal also does not accept on the limited evidence before it, including the medical certificates from [a doctor] of [a] Medical Centre submitted to the Department, that the applicant was suffering any illness or health issues that affected her ability to recall such details. The Tribunal notes the applicant provided three medical certificates from [the doctor] to the Department; the first dated [in] March 2015 certifying that the applicant had attended the clinic that day because of a medical condition and based on “my opinion/this condition/patient’s state she was unable to attend work/school on/from [date]/3/2015 to [date]/3/2015 inclusive”; the second dated [in] August 2015 certifying that the applicant attended the clinic [in] August 2015 because of a “medical condition – depression and anxiety since many months and based on “my opinion/this condition/patient’s state she needs to follow regular treatment and do relaxation and meditation to destress (sic) herself and get better”; and the third dated [in] October 2015 certifying that the applicant attended on that date because of a medical condition –depression and anxiety since 1 year and “based on my opinion/this condition/ patient’s state she needs to follow regular treatment and do relaxation and meditation to destress (sic) and get better” and “she is on antedepressants (sic) medication as well”. The Tribunal finds that there is nothing in the certificates provided to indicate when the applicant was diagnosed with depression and anxiety or on what basis this diagnosis was made. The Tribunal notes that the first medical certificate dated [in] March 2015 makes no reference to the applicant suffering from a specific medical condition, let alone depression and anxiety, and in light of this certificate, the Tribunal is unclear as to the basis on which [the doctor] subsequently stated in October 2015 that the applicant had been suffering depression and anxiety “since 1 year”. The Tribunal also notes that according to the certificates, the document dated [in] August 2015 makes no mention of the applicant being on anti-depressant medication at this time and it is only in the later certificate dated [in] October 2015 that there is reference to the applicant being on anti-depression medication. As such, the Tribunal does not accept the applicant’s previous adviser’s submission that the applicant’s ability to recall dates and information was affected by medication she was allegedly taking at the time of the interview with the delegate [in] August 2015. Nor is the Tribunal satisfied on the minimal information provided by the applicant’s doctor that the applicant forgets things many times as well as dates due to her stress and depression. Further, there is nothing in any of the certificates submitted to indicate the applicant was suffering from [condition] around the time of the interview in August 2015, as she asserted during the hearing. The Tribunal finds the applicant’s evidence regarding her relationship with her husband has changed significantly over time and this raises serious doubts about the credibility of her claims regarding this relationship.
More significantly, the Tribunal finds the applicant’s difficulty in recalling the date of her marriage to be disquieting. In the applicant’s statutory declaration attached to her protection visa application she claimed that she was married one month before she departed Pakistan which would make it October 2011, as the applicant departed Pakistan [in] November 2011. In the interview with the delegate the applicant was unable to recall when she was married, suggesting that it was in August 2011. Yet, the marriage certificate which she submitted states that the marriage took place [in] February 2011. When the Tribunal put to the applicant the inconsistency in her evidence as to the date of her marriage and its concern regarding her difficulty in remembering such a significant date, the applicant stated that the difference in dates was because of the stress she was going through and that such variations in her evidence demonstrated how stressed she was. However, the Tribunal has taken into consideration the applicant’s explanation in the hearing that she and her husband chose [date] February 2011 to get married because that was the date of [a certain anniversary]. The Tribunal finds it beggars belief that if the applicant and her husband has specifically planned to celebrate their marriage on [this anniversary], that the applicant would not be able to recall consistently this important date or that she would not recall the connection between [this anniversary] and her marriage.
Further, the Tribunal notes the applicant’s evidence in the hearing was that the marriage took place at a her husband’s friend’s office in a village roughly [time] minutes’ drive from [Town 1]. She confirmed this place was not in [Town 1]. In the interview with the delegate, the applicant claimed that the marriage took place in her husband’s village, which she said in the hearing was called [name] and was [time] minutes depending on the road situation. However, according to the marriage certificate submitted it states the marriage was celebrated in [location] in [Town 1], which is the same area the applicant resided in. When this was put to the applicant she responded with a somewhat nonsensical reply that they took her address and mentioned it on the Nikah Nama and she did not know they were going to mention her address on the Nikah Nama. She stated that she purposely mentioned the wrong address and was living in some other area and that she was very stressed at that time and had no idea why the religious imam mentioned her address. The issue with the applicant’s evidence is that she has not provided a consistent account of where this alleged marriage took place which raises further doubt about the marriage.
The Tribunal notes the observations made that the applicant’s signature on the marriage certificate is different to her signatures on other forms and documents she had submitted. The applicant stated that she had signed her marriage certificate with a different signature on purpose in order to not be identified. However, the Tribunal does not accept this explanation given the marriage certificate includes all the applicant’s other details including her name, date of birth, her father’s name and her address (consistent with the details she provided in her protection visa application) which would have identified her.
The Tribunal has also taken into consideration the fact the applicant submitted one marriage certificate which had one date written in English and another copy of the certificate which had the same date written in Urdu. Further the notary stamps on these certificates are different. The Tribunal does not accept the applicant’s evidence that each of these documents are originals and not copies and that she signed four different forms. It has had regard to the independent information which provides that there can be 3-4 copies of the Nikah Nama – one for the Mulavi, one for the bride and one for the groom and even the Union Council but they are copies of an original and not different documents. The Tribunal has also had regard to information from DFAT in their report on Pakistan from 2016 regarding document fraud in the country, which has been described as being endemic, and the ease in which personal documents such as marriage certificates can be obtained. Taking into consideration the applicant’s unsatisfactory evidence in relation to her marriage and the concerns discussed above regarding the actual certificates submitted, including the applicant’s signature, the Tribunal places no weight on this document as evidence of the applicant’s marriage.
The Tribunal also finds the applicant’s knowledge of her husband’s background to be limited. When asked if she knew his parents’ names, the applicant stated in the hearing that she had never asked her husband. She subsequently claimed that he once told her about his parents but she could not remember now. The Tribunal notes when it asked the applicant if her husband had any brothers and sisters, she responded that she was not sure whether his mother was alive or had passed away but his father was alive and he had also told her about his [sibling] who was living in [Country 1] with [spouse]. When the Tribunal asked the applicant if her husband only had [that sibling], she stated that she never asked him about his family because she felt she had no concern with his family. In the interview with the delegate, the applicant had claimed that her husband might have had [siblings] and she did not know if he had [other family members]. She also did not mention anything about his [sibling] and [spouse] living in [Country 1]. While the applicant claimed no one specifically asked about his [sibling] and [spouse] and despite knowing this fact that they were living in [Country 1] she did not tell the delegate because she was not asked directly, the Tribunal observes that it also did not ask the applicant any specific questions about where her husband’s [siblings] were living yet she provided this information. The Tribunal also does not accept the applicant’s contention, that she did not answer the other questions asked by the delegate properly because she was stressed out. The Tribunal finds it implausible that if the applicant was in a genuine relationship with her husband, that she would not have a better knowledge of her husband’s family or that she would be unable to demonstrate some awareness of his family composition even if she was stressed out. As discussed above the, the Tribunal does not accept on the evidence provided that the applicant was suffering from [condition] around the time of the interview or that she had difficulty recalling things because she was suffering anxiety and depression and/or was on medication that affected her ability to remember. The Tribunal finds the applicant’s apparent lack of interest in her husband’s family demonstrated in the hearing concerning and this raises significant doubts about the genuineness of this relationship and subsequent marriage.
In the hearing the applicant claimed that seven to eight months after arriving in Australia, her mother was talking to her friend and her friend accidently mentioned that she was living happily with her husband and that was the point when her family learned of her marriage. She claimed that her friend initially refused to give her mother her number but was pressured by her brothers and husband to do so and then her brother called and said her family has no relation with her. However, in the interview with the delegate, when asked what happened after her friend accidentally told her mother she was married, she claimed that she called her mother and tried to explain. The applicant confirmed she only spoke to her mother and not her father or brothers. When the Tribunal put this to the applicant, she stated firstly after taking the number from her friend her mother called her and at that time her brother snatched the phone from her mother and started talking to her and then afterwards when she called back her brother and father refused to talk to her and she just spoke to her mother. The Tribunal finds the applicant’s response reflective of her preparedness to embellish her evidence and that the different versions of what allegedly transpired provided by the applicant raises serious doubts about her credibility generally.
During the hearing the applicant claimed that after her family allegedly learnt about her marriage, her brothers went to her husband’s village and threatened her husband’s father and family, although they could not find his father. She claimed they took 8-10 friends with them and insulted her husband’s family in front of the whole village. She also claimed that after that 8-10 people from her husband’s side came to her village with guns and asked her family to get her to divorce her husband. Further, the applicant claimed that her father and her husband’s father met face to face and beat each other and that her cousins also joined in and they had a very brutal fight. However, as the Tribunal noted in the hearing, this was the first time the applicant had raised anything about her father and her husband’s father meeting face to face or any brutal fight. The applicant responded that she was quite stressed at the interview with the delegate because she was recently divorced and could not remember any dates then. As the Tribunal highlighted this was not a date but a fairly significant series of events which it finds implausible the applicant would fail to raise in any of the statutory declarations she provided or in any of the submissions from her previous or current adviser. Despite the applicant’s insistence that she had said both families went to each other’s place and had a fight but did not explain this in detail, the Tribunal has considered all the evidence before it and there is nothing about any face to face meeting between her father and her husband’s father or any fight between the families. The Tribunal finds the applicant’s explanation that maybe she was stressed or maybe she could not recall the incidents so that was why she could not explain the detail of the fight unconvincing.
The Tribunal also finds the applicant’s return to Pakistan in circumstances where she has claimed to have been essentially disowned by her family, they had allegedly threatened her husband’s family and been involved in a brutal fight with them and she had also initially claimed they had threatened her, implausible and inconsistent with her fears of harm from her family. The Tribunal refers to the applicant’s evidence regarding the dire situation for women of her caste who marry against the wishes of their family and her reference to the particular case of one women who was murdered by her family and finds it beggars belief that if the applicant had married against the wishes of her family and they had reacted as she claimed, that she would return to Pakistan to see her family for whatever reason, including the concern she may have had for her marriage, as she explained in both the hearing and in the submission from her previous adviser. The Tribunal finds the applicant’s clarification that things were not that serious at that time to be inconsistent with her evidence regarding her alleged problems. The Tribunal finds the applicant’s return to Pakistan to see the family she claims will harm or kill her if she goes back raises serious doubts about the credibility of her claims.
The Tribunal does not accept that the applicant’s father is deceased. The Tribunal notes the applicant claimed in her protection visa application that her father passed away in October 2014 however her evidence in the hearing was that she was informed by her friend in July or August 2014 that her father had passed away a month or two before. While the applicant claimed in response that these were all just ideas and that she had no knowledge of the exact date, the Tribunal does not accept, particularly in light of the applicant’s evidence at the beginning of the hearing that she does speak to her mother, that she would have no awareness of at least the month that her father allegedly passed away, if in fact he had. The Tribunal therefore does not accept that the applicant’s father is deceased. As such, it does not accept that the applicant’s family members and her [relatives] will harm her because they hold her responsible for her father’s death.
In regard to the applicant’s separation from her husband, the Tribunal finds that she has provided conflicting information about when this occurred. In the 4 October 2015 submission from her previous adviser it was stated that she had separated from [Mr A] at the beginning to middle of 2014, that [Mr A] moved out of the house in the middle of 2014 and she filed for divorce at the end of 2014. However, in a submission dated 13 October 2015 it was subsequently claimed that the applicant originally separated from her husband in approximately September 2013 and had a brief reunion in the middle of 2014. In the hearing the applicant claimed that her husband left in September 2013 and then came back for a month with a plan and the reason she cannot clarify this matter is that her husband did not change his address after leaving their home so that is why it is creating the confusion. The Tribunal is unclear as to how the fact the applicant’s husband did not change his address after he left impacts on the applicant’s ability to recall with some consistency when she separated from her husband, particularly given the significance of this event.

Further, the applicant explained in the hearing that when her husband came back home in April 2014, two or three days after his return she made a statutory declaration in respect of his [temporary] visa. The Tribunal notes the applicant’s evidence regarding this statutory declaration is relevant to discussion in the delegate’s decision regarding an application made by the applicant’s husband in May 2014 for a [temporary visa] and a statutory declaration made by the applicant confirming that they were living together. As the Tribunal put to the applicant in the hearing, the statutory declaration which was submitted in support of the application for a [temporary] visa by her husband was dated August 2014, which was several months after he allegedly came back and left again and is not consistent with her evidence in the hearing that she had made the statutory declaration two to three days after her husband retuned in April 2014. While the applicant responded that it might have been her mistake and confusion in stating the dates, the Tribunal finds this explanation unconvincing.
The Tribunal notes that the Department received information from an anonymous source suggesting that the applicant’s marriage was fraudulent and was arranged by a consultant in Pakistan. According to the information received she and her husband had not known each other before getting the visa and a fake marriage certificate was used to get the visa. The arrangement was that the applicant’s “husband” would provide the finances and she would provide her educational testimonies. On arrival in Australia she and her husband parted ways and have never lived together and no-one in Pakistan knows that they are married. When the Tribunal put this to the applicant in the hearing she responded stating that the nikah happened; it was conducted in front of the religious Imam and she signed her Nikah Nama herself. She also stated that she had told the Department of Immigration that they knew each other very well, they met [at her workplace] and were in love. As far as finances were concerned, she claimed her financial position was better than her husband’s because he was working as a farmer and she was working as [occupation], earning [amount] rupees a month. She stated she was very tired of explaining these things over and over again and that maybe this is happening in Pakistan with other couples but this was not the case for her. The Tribunal notes in the submission from the applicant’s previous adviser, as well as submissions from her current adviser (including in response to the Tribunal’s s.424A letter), it was contended that the applicant was well educated and had ongoing professional employment in Pakistan and as such, if she wished to travel to Australia she would have been more than capable of facilitating the same by herself. The applicant’s previous adviser also referred to statutory declarations from the applicant’s landlord and housemate attesting to the fact the applicant and her husband resided together and correspondence addressed to the applicant and her husband separately, to the same address. In respect of the statutory declarations, the Tribunal places little weight on these documents provided in support of the applicant given its concerns regarding her credibility. The Tribunal has also had regard to the correspondence addressed to the applicant and her husband, separately, at the one address, however the Tribunal does not accept that this is evidence that they were both residing there but instead evidence that their mail was being sent to the same address.
When the Tribunal put the above information to the applicant, in accordance with the requirements in s.424A of the Act, the applicant’s adviser responded that the applicant has consistently maintained she was in a genuine relationship with her former spouse when they applied for the [temporary] visa to travel to Australia and has consistently refuted suggestions the relationship was non-genuine and designed solely to obtain a [temporary] visa. In a statutory declaration made by the applicant addressing the matters raised in the s.424A letter, the applicant reiterated details regarding the development of her alleged relationship and provided a similar response in respect of this information, to that which she gave in the hearing, as discussed above. She stated that if her marriage was “fake” she would have been well-prepared for her hearing and rehearsed answers to potential questions that could be asked by the DIBP officer during her interview but was so stressed and shocked by the allegations that she could not remember facts properly and was unable to convey this information accurately to the immigration officer. The applicant also restated that she was well-educated and employed as [occupation] in [workplace] at the time which was a well-paid job so if she wanted to come to Australia, she could have met the financial criteria herself. The applicant attached a copy of a salary certificate issued by the [workplace], Gujrat, dated [in] March 2017, as evidence of her previous income. Further, the applicant stated her former husband was a farmer who worked on his father’s plot of land so there was no way he would be the one providing the finances. The applicant also referred to the evidence discussed above from her landlord and housemate and correspondence from [agency] which she submitted proved that she and her former husband were living together.
The Tribunal has taken into consideration the applicant’s explanation provided both in the hearing and in submissions, including in her statutory declaration received in response to the Tribunal’s letter, as well as the submissions from her advisers, in respect of the information from the anonymous source. Irrespective of this information, the Tribunal finds, for the reasons discussed above, which are independent to the allegations made by the anonymous source, that the applicant’s claims regarding her marriage, are not credible. While ordinarily the Tribunal would place little or no weight on information from an anonymous source, in light of the Tribunal’s numerous and varied concerns regarding the credibility of the applicant generally and her claims for protection, which are somewhat consistent with this information, the Tribunal places some weight on this material.
Based on the above, the Tribunal finds the applicant is not a witness of truth and that her claims are not credible. The Tribunal does not accept that the applicant’s family had no knowledge that she was coming to Australia or that she has not been in contact with them since first arriving here. The Tribunal does not accept that there was any offer of marriage made to or by the applicant’s cousin (who is [number] years younger than her) in 2008, which she refused. It therefore follows the Tribunal does not accept that after the applicant allegedly refused this marriage offer, her cousin’s family went against her and blamed her father for allowing her to get an education. The Tribunal therefore does not accept that the cousin who she was supposed to marry, and his family, are against her.
The Tribunal does not accept the applicant’s account of her meeting her husband while working [in] Gujrat when he was there with a [friend] and the development of their relationship. Based on the above, it does not accept that the applicant was validly married and therefore does not accept that she has insulted her family because she has married outside her family and they will kill her.
As such, the Tribunal does not accept that seven to eight months after coming to Australia, the applicant’s mother learned that she had been married from her friend and after that either the applicant’s mother or brother called and told her that they no longer had any relations or that her father had suffered a [medical condition] as a result of this news. As discussed above, the applicant provided conflicting evidence regarding her contact with her family after they allegedly learnt of her “marriage”. The Tribunal also does not accept that the applicant subsequently tried to call her family to explain the situation to them but no-one was ready to listen to her.
Nor does the Tribunal accept that the applicant’s brothers went to her “husband’s” village with 8-10 of his friends, insulted his family in front of the village and threatened her husband’s father and family, at which point her husband’s family allegedly learnt of this marriage. It does not accept that after this alleged incident, 8-10 people from her “husband’s” side went with guns to her village in [Town 1] and told the applicant’s family to ask her to get a divorce. The Tribunal does not accept the applicant’s claim, made for the first time during the hearing (as discussed above), that her father and her alleged husband’s father met face to face and beat each other and that her cousins also joined in and they had a very brutal fight.
While the Tribunal accepts the applicant returned to Pakistan in October 2012, the Tribunal does not accept that she did so because she was having fights with her alleged husband on a daily basis and wanted to convince her family of her relationship. The Tribunal does not accept that when she reached her home she was not allowed in her house by her [brother] and he slapped her. Nor does the Tribunal accept that the applicant was taken into her [Relative 1]’s home [nearby], where she was scolded by her [Relative 1] but allowed to stay the night, and the next day her [Relative 1] went and spoke to her family and was told if she continued to allow the applicant to stay in her home they would be against her. The Tribunal therefore does not accept that after this, the applicant went and stayed at her friend’s place for 5 days before going to a hotel for 3-4 days because she was scared her family would locate her.
The Tribunal also does not accept that after returning to Australia from her trip to Pakistan in October 2012, the applicant tried contacting her mother a couple of times because she was keen to convince her mother about her marriage and to stop her father and brothers pressurising her husband’s family by threatening them over the phone. Nor does the Tribunal accept that her husband’s family gave her husband an ultimatum – that he had to choose between them and her. The Tribunal does not accept that the applicant and her husband were fighting daily and in September 2013 her husband left her, before being convinced to return to her in April 2014, on condition that she write a statutory declaration so he could get a [temporary] visa. As discussed above, the applicant’s evidence regarding when she and her husband allegedly separated has been discrepant, in addition to her account of when she wrote this statutory declaration, as compared to the date recorded on the actual document.
Given the Tribunal’s findings that the applicant’s claims are no credible, the Tribunal does not accept the applicant faces a real chance of serious harm, including honour killing, from her brothers, particularly her [certain family members and relatives], [the cousin] she was allegedly supposed to marry and his family because she has married outside her family or her caste or because she is a member of a particular social group of individuals who enter mixed caste marriages or because she is being blamed for the alleged death of her father or because she refused to marry her cousin.
Nor does the Tribunal accept the applicant’s previous adviser’s submission that the applicant faces a real chance of serious harm for reasons of her membership of a particular social group of women as a result of her allegedly not adhering to cultural and social norms by not marrying a man chosen by her family. Similarly, as the Tribunal does not accept that the applicant is estranged from her family for this reason, it does not accept that there is a real chance the applicant will suffer harm upon return to Pakistan given her gender, as she would be afforded limited rights and be at risk of exploitation.
While the applicant did obtain a divorce order in Australia, for the reasons discussed above, the Tribunal does not accept that the marriage certificate she has provided is genuine and that the applicant was validly married in Pakistan. The Tribunal therefore does not accept that the applicant will be viewed or considered to be a divorced woman either by her family or wider society. While the applicant claimed that everyone will know she is married and divorced because it will say she is divorced on her ID card as her husband’s name replaces her father’s name on her ID card, the Tribunal has taken into consideration the copy of the applicant’s ID card which she submitted to the Department. The ID card was issued [in] 2012 and expires [in] 2019 and has the applicant’s father’s name included. The Tribunal notes when asked if she had her ID card in the hearing, the applicant claimed she did not need one here and in response to the Tribunal’s question as to where it was and if it was in Pakistan, the applicant stated it might have expired and she has not renewed it in a while. Based on the certified copy of the ID card submitted with the application for protection, the Tribunal does not accept that the applicant’s ID card has expired or that she does not have it with her in Australia and finds the applicant’s response confirms the serious doubt it has regarding the reliability of her evidence.
For the reasons discussed above, the Tribunal does not accept that the applicant was practically disowned by her family due to marrying outside her caste or that on her return to Pakistan she will not be able to reside with her family and will be left with no option except to live alone, as claimed by her previous adviser. As such, the Tribunal does not accept that the applicant’s ability to subsist would be restricted or that she would face a real chance of being exploited and seriously harmed for reasons of her membership of the particular social groups of divorced women, or women, as submitted by her previous adviser.
The Tribunal notes at the conclusion of the hearing the applicant was asked if there were any other reasons she feared returning to Pakistan, and he claimed to fearing terrorism in Pakistan because in Pakistan people can enter anyone’s house and rape a girl and unlike in Australia where she can drive and go to work herself, she cannot drive in Pakistan and girls cannot go home after evening because of threats in society. As the Tribunal put to the applicant in the hearing, this was not consistent with her evidence regarding her employment history in Pakistan, which included her living in [hostels] away from her home area and her ability to travel back and forth between [Town 1] and Gujrat by public transport. While the applicant responded that she experienced problems travelling from [Town 1] to Gujrat, namely that drivers would hoot their horns at her and boys would tease and hoot at her, and that was the reason she applied for a transfer from Gujrat to [Town 1], the Tribunal notes the applicant’s earlier evidence in the hearing regarding an incident when she got a lift from a colleague and her cousin saw her get out of the car and told her brother, and her father then asked her to get a transfer from Gujrat to [Town 1]. Given the Tribunal’s concerns about the applicant’s credibility generally and the discrepancy in her evidence regarding the reason for her alleged transfer, the Tribunal does not accept either accounts given by the applicant for her transfer. It also finds that she has embellished her claims that as a result of the alleged attention she was receiving when she travelled to and from work, her father required her to wear a burka and that was why she applied for a transfer.
The Tribunal has taken into consideration the reports provided by the applicant’s adviser, including the Amnesty International Annual Country Report 2015/2016, Human Rights Watch World Reports 2014, 2015 and 2016 and the 2015 Pakistan Human Rights Report . While the Tribunal accepts on the basis of these reports that violence against women, including rape, honour killings, acid attacks, domestic violence and forced marriage, remains a serious problem in Pakistan, having regard to the applicant’s particular circumstances and her accepted past experiences in Pakistan, the Tribunal does not accept that she faces a real chance of serious harm including rape, as a women or a single woman, particularly given that it does not accept that she has been disowned by her family and therefore has no male protection. The Tribunal finds the applicant will be returning to her family home in Pakistan where she will have the support of her family including her father and brothers.
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of her membership of the particular social groups: women, single women, divorcees, women who have rejected marriage proposals from an individual or family member and/or individuals who enter mixed caste marriages. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
Nor does the Tribunal accept, based on the reasons and findings discussed above, namely that the Tribunal does not find the applicant a witness of truth and her claims regarding her marriage and the problems that resulted from it are credible, that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan, there is a real risk that the applicant will suffer significant harm from her family including her [siblings and other relatives], or family members, or anyone else, because she married someone out of her caste or family or because she is a woman or single woman or as someone who entered into a mixed caste marriage or had rejected a proposal from a family member or as a divorcee or any other reason.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sydelle Muling
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.
…

[2017] AATA 594

3 April 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing