1605513 (Refugee)

[2017] AATA 1144

1605513 (Refugee) [2017] AATA 1144 (30 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605513

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:30 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2017 at 9:57am

CATCHWORDS

Refugee – Protection visa – Pakistan – Particular social group – Inter-caste marriage – Physical assault – Threats – Honour killing – Credible witness – Relocation not possible

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant S v MIMA [2004] HCA 25
Applicant S v MIMA (2004) 217 CLR 387
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC [2007] HCA 40
SZFDV v MIAC [2007] HCA 41

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] April 2016.

3. The applicant appeared before the Tribunal on 29 November 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his 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 ex- 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 ex- 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant claims to be a citizen of Pakistan who was born on [date] in [City 1], in Punjab, Pakistan. The applicant described his ethnicity as Punjabi. According to his protection visa application, he lived at [his home village], in [City 1] from [year] to June 2008. From June 2008 to September 2009 he was living in [Country 1] and from September 2009 to February 2014 he was living in [Country 2] (in [City 2] from September 2009 to November 2012 and in [City 3] from November 2001 to February 2014). He resided in [his home village] in [City 1] from February 2014 to April 2014.  The applicant completed sixteen years education, qualifying with [a tertiary qualification]. He is fluent in Urdu, Punjabi and English. The applicant described his occupation before coming to Australia as [an occupation]. He departed Pakistan legally [in] April 2014. The applicant was separated from his wife [in] February 2014. His father, mother [and siblings] are residing in Pakistan.

21. The applicant presented his claims in his protection visa application [in] June 2014 (folios 28 to 58 of Departmental file CLF[number]), a Departmental interview he attended [in] January 2015 ( folio 119(b) of Departmental file CLF[number]), in submissions from his adviser to the Tribunal and at his Tribunal hearing on 29 November 2016. 

22. The applicant claimed that he left Pakistan to rescue himself from a continuous and significant threat of torture and/or death at the hands of some people keen on killing him. He claimed he had suffered torture and physical harm. He was beaten physically and with wooden sticks. The applicant claimed he was attacked with a machete and was left with a machete wound and [an injury].

23. The applicant claimed if he returns to his home country, he fears he will be at risk of torture and/or death from his ex-wife’s [Relative 1] and family. His ex-wife’s family are of the opinion that his marriage to his wife has brought shame and dishonour to their family, caste and prestige and are keen on avenging this. The applicant claimed that it is common for such families or people in Pakistan to kill their family members, daughter, sisters for such acts, let alone a stranger who is not their family. He could have taken this lightly but for having faced what they had done to him and realising that they are very serious and keen on avenging what he has done. He knows for sure he will be facing immense risk if he returns to Pakistan.

24. The applicant claimed that he did not think the authorities can and will protect him if he goes back to Pakistan. He claimed the police and law enforcement authorities in Pakistan are only there for the rich and influential. They failed to provide him with any kind of safety. The police have not helped at all, despite registering a case against the people who attacked and kidnapped him. He has no hope whatsoever in the authorities.

25. The following is the statement made by the applicant attached to his protection visa application: 

    I have submitted this application for the grant of protection in Australia, due to a dangling threat to my life in my home country where some people due to some events that have occurred in my life, are keen on killing me.

    I am a Pakistani national and belong to a middle class family in Pakistan. I am [age] years old. I met this girl, [Ms A] while I was at High School in [City 1], Pakistan. We used to study together in the same class and studied our 0-levels together. We have had some liking for each other ever since. She migrated to [Country 2] with her family sometime around 2006. I went to [Country 2] in September 2009, and just like any other childhood mates, I was still in contact with her. Gradually we developed affection and love for each other and entered into a relationship. This went on for a couple of years before we decided we wanted to get married to each other

    When she spoke of this to her parents, it was an immediate refusal. They would not let her marry a boy from outside their caste and adding to that, her mother had already chosen [a marriage partner] for her. This [proposed marriage partner] of [Ms A] was of the same caste, [and] was a doctor, which meant he enjoyed a high social status in Pakistan. This was a tragic news for me. Our relationship was stronger than ever and eventually she then decided to go against her parents' wishes and decided to marry me.

    Her parents were shocked and agitated at this whale thing, but could not do much as [Country 2] laws are tough on forced marriages. We got married in late 2012 in a small ceremony, which was well attended by my friends and relatives however none of her relatives or parents attended the wedding. A few months on, for her being a [Country 2] citizen, I was able to switch on to the spouse visa, for being a partner of a [Country 2] citizen. Once we got married to each other, it seemed our problems had come to an end. Her parents only lived around the corner and she would visit them regularly and will spend considerable time with her. Just when I thought our problems may have come to an end, I realized that it was getting worse. Her parents were playing with her mind. One day her mother will pretend of [health condition] due to her stress over this marriage and will call an ambulance when on the other day she would be lying to her about me, to create confusions. [Ms A] was going through immense emotional trauma due to consequences of her marriage.

    While she loved me very much, she loved her parents too. We wanted to plan children but she was going through a lot due to her parent's refusal to accept our marriage. It was getting too much for me too as I could not be at peace having her in that state of mind. It was getting a bit upsetting and depressing for both of us. I suggested we should go on a holiday somewhere and she loved the idea. Both of us wanted a break. We chose Australia, planned our holiday for May 2014 and got our visas. We were looking forward to it. We planned to visit Pakistan too, where she would be able to meet my parents as well as her relatives. I was missing home too. We planned to go back to Pakistan together [in] February 2014. However just days into our departure her mother suddenly got ill again and made [Ms A] not go ahead with the plan. She suggested that she would be joining me in Pakistan in a week.

    I left for Pakistan [in] February 2014. I was in regular contact with my wife and we were missing each other, However I suddenly lost contact with her one day, and I couldn't get hold of her either online or over the phone. I tried calling my wife as I usually would, but her number was switched off. We did not have a landline number at our home, so I called on her parents' landline and her mother answered the phone. I asked her about [Ms A]. She told me to forget about my wife, as she was no longer my wife. She added that I will be taken care of in Pakistan and that they have reported me to the [Country 2] Immigration Authorities in the name of [Ms A] and that I won't be able to enter [Country 2] even if I tried to. I was also told that they have filed for divorce. She got [Ms A] on the phone, who was crying at that point and told me that her mother is ill and she blamed herself for that. She added that she was sorry but she couldn't choose me over her parent's. I was told to never call them back and to leave them alone.

    I was devastated by this. I made desperate attempts to contact [Ms A] but all in vain. I couldn't sleep, couldn't eat and was in a terrible state of mind. A week after this incident roughly mid of February 2014, her [Relative 1] who lived in Pakistan, called me and told me he wanted to see me somewhere because they wanted to get things right. A [venue] was chosen. I went there and called him, only to be told that he was in a car outside the [venue] and he invited me to have a chat in there. As soon as I sat in, he started driving. I asked about where we were going, only to be told that we were going to his friend's place. I was taken to a [location] on the outskirts of the town only to be taken out of the car by [number] men and beaten till I couldn't stand up. I could see a couple of them holding handguns and could listen to them talking to each other suggesting they couldn't wait to shoot at me. I was begging them to let me go throughout this ordeal. My wife's [Relative 1] even said he would chop my hands off before killing me for touching a girl of his caste/family.

    Half-conscious after the severe beating and [an injury], I was left there that evening and they all left leaving one behind to keep an eye on me. Sometime very early in the morning, when this man walked a hundred yards down towards the toilet, I took it for a run. Without making a noise I was able to get to a bicycle there, but that very moment he looked back and ran towards me. He had his machete on his waist and I saw him take it out when I started to pedal the bicycle. A few seconds into it and I felt a sharp, deep stab on my [body]. For a second, I thought it was over and that I didn't have more to live. I looked back for a blink of an eye and realized the man had fallen to the ground behind me. I then didn't look back and just kept moving the bicycle despite tremendous pain. A couple of miles ahead, I stopped a passerby for help. I gave my father's number to him. He called using his phone and informed my father of the situation and the whereabouts. My father got there eventually and I was taken to the hospital. My father got a phone call from that [Relative 1] of my wife a few hours later and they told my father that I was the reason for the ill health of [my ex-wife’s  mother] and that they will kill me the next time they get the chance. We sought the help of police and registered a case against them. These people were influential people who could use their money and influence to get the police work as they wish. Days went by and the police failed to do anything. Instead, the police tried to broker a deal where I will be handed over to them and that the rest of my family will be safe. Else, they will find me, kill me and register a fake case against my father. I was meanwhile taken to my [relative]'s place in [City 4] where I was left there for the time being into hiding.

    Once in [City 4], I was recovering from [injuries], and at the same time dipped into depression. It was a nightmare. I felt like killing myself for I was the reason for all this that my family had to go through. I felt like killing myself for my wife who meant everything to me was gone. It was a horrible state of mind I was in. I was being treated for depression but it was not making it any better. I had lost my sleep and appetite. The constant state of paranoia I was in, was killing me. I would lock myself in the room and the fear will not let me open the door. Even when I did go out, I would constantly be looking over my shoulder. And then came this day when my worst fears came true. I was out visiting the doctor one day when I received a call from my [relative] I was living with telling me not to come back home and go to a friend of his who will pick me up from the doctors. I was taken to the friend of his and was then informed that [number] men knocked at the door of my [relative]'s house. When my [relative] opened the door they forced their way in and searched the house for me. When they couldn't find me, they pushed everyone in one room and with the guns pointed at them, they threatened to kill them all if they didn't tell them about my whereabouts. My [relative] told them that I was there but that I had left a couple of days ago. They left the house but warned my [relative] that they will not sleep in peace until they find me. Hearing of all this, I was trembling with fear. Having had a close encounter with death, makes it worse. It was absolutely terrible. I could not live in that state anymore.

    Fortunately enough, I remembered one day, that I still had the Australian visa. I then spent rest of the time in Pakistan in hiding, until I boarded a flight and arrived in Australia [in] April. I strongly believe, that if I go back to Pakistan I would be found and killed or severely tortured by those same assailants. Honor killings due to marriages with a lower caste and disputes over love marriages are rampant in Pakistan and in number of cases couples have been found and killed even decades after their initial marriage. The deeper resentment against hurting a family pride and honour runs deep into Pakistani society where they don't forget or forgive their "culprits" for years.

    I believe I will never be safe in Pakistan, for long. I may have to live under constant threat, in hiding and still under a constant risk of torture and/or death. Pakistani state and police have completely failed to protect me against this. I wish to stay in Australia as I don't have anywhere else to go to and live in safety.

1. The delegate found the applicant to be a highly credible witness, forthcoming with all aspects of his claims and answered clarifying questions without hesitation. The decision record states that the applicant provided a high degree of evidentiary detail in support of his claims. He displayed at interview a large scar [consistent] with a machete wound he claimed to have sustained during an attack in Pakistan in 2014. The delegate also found the applicant’s claims regarding his previous and current visa status in [Country 2] were supported with information independently obtained by the Department and this supported the applicant’s general credibility. The delegate accepted the applicant’s claims as genuine and that he was abducted, held captive and seriously physically assaulted by members of his ex-wife’s family. They accepted the applicant was targeted for having brought shame to his ex-wife’s family owing to the couple’s inter-caste marriage in [Country 2]. The delegate noted the country information about honour killings and was satisfied such attacks do occur and that there was little doubt that the applicant faces a real chance of persecutory harm from the family of his ex-wife should he encounter them in his home region. The delegate found the applicant would not be able to seek state protection should he return to Pakistan. However, the delegate was satisfied that the applicant could relocate within Pakistan, being unable to conclude that the applicant faces more than a remote chance of harm outside his home region.

2. The primary issue in this review is whether there is a real chance that, if the applicant returns to Pakistan, he 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 him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

4. The Tribunal accepts that the applicant is a citizen of Pakistan based on his Pakistani passport and therefore has assessed his claims against Pakistan as his country of nationality.

5. The applicant claimed that he fears harm from his ex-wife’s family, particularly her [Relative 1], if he returns to Pakistan because his inter-caste marriage had brought shame and dishonour to their family. He claimed his ex-wife’s mother and her family especially did not approve of his marriage and the first time they had a chance to act against him, they did.  He fears if he returns to Pakistan, his ex- wife’s mother’s family will harm or possibly kill him because of his inter-caste marriage which has damaged their family pride and honour.

6. The Tribunal found the applicant to be a credible witness. The applicant provided detailed and consistent evidence regarding his relationship with his ex-wife and the problems he experienced from her family members both in [Country 2] and in Pakistan as a result of their marriage, throughout the process. The applicant gave his evidence in a manner which the Tribunal found persuasive. Further, the Tribunal found the applicant’s claims consistent with independent information regarding marriage between people of different castes and familial reactions to such marriages.

7. The Tribunal accepts the applicant met his ex-wife in high school and that they were in a relationship from this time. The applicant’s evidence was neither his or his ex-wife’s family were aware of their relationship during this time. It accepts that the applicant’s ex-wife migrated with her family to [Country 2] in 2006 and that the applicant continued to maintain contact with his ex-wife via [social media] once he was in [Country 1].

8. The Tribunal accepts that when the applicant moved to [Country 2] in 2009, he resumed his relationship with his ex-wife. The applicant’s evidence was that once he moved to [Country 2], he was based in [City 2] and his ex-wife in [City 3]. They would meet four or five times a month. He claimed that he told his family about his relationship with his ex-wife in 2010 and his family’s reaction was “normal”. His ex-wife told her family in 2011. The applicant explained that his ex-wife had visited Pakistan in 2011 and her parents were trying to arrange a marriage for her to [someone] but she had managed to avoid the situation by threatening to get the [Country 2 embassy] involved and came back to [Country 2]. It was when she returned from Pakistan that she told her family about her relationship with him. He stated that her parents were agitated and angry and they just said no. The Tribunal accepts that the applicant’s ex- wife’s family refused to accept the union because the applicant was outside their caste and also because her mother had already chosen a [marriage partner], who was of the same caste and also a doctor, and thereby of a better social standing, as suitable marriage partner for his ex-wife.

9. The applicant’s evidence in the hearing was that after his ex- wife’s parents became aware of their relationship, more restrictions were placed on his ex- wife’s movements, which resulted in them not seeing each other as frequently as they had before. He explained that his ex-wife tried to convince her parents over the next few months about him and that she managed to arrange a meeting between him and her father in 2011. The applicant stated that her father met him for a coffee when he came to [City 2] to visit a friend and they had a nice conversation. Her father told his ex-wife that he was a good boy and he did not mind but that she needed to convince her mother as well.

10. The Tribunal accepts that the applicant and his ex-wife made the decision to marry in 2011 despite the difficulties with her family and that they were legally married in November 2012. The applicant’s evidence was that due to [Country 2] law being tough in respect of forced marriages, there was little his ex- wife’s parents could do to prevent them marrying. The applicant claimed that his ex-wife informed her parents about their marriage after registration and they were pretty angry but they could not do much. He and his ex-wife moved out together and despite her parents opposition to their marriage, both his ex-wife and himself had contact with them. The applicant claimed in the hearing that his interaction with her parents was initially okay but her mother caused problems in their marriage with her emotional manipulation of his ex-wife.

11. The Tribunal accepts that as a result of the difficulties the applicant and his ex-wife were experiencing in their marriage due to his ex- wife’s mother’s interference and influence in their relationship, they decided to go on holiday, travelling to Australia via Pakistan so the applicant’s ex-wife could meet the applicant’s parents. It accepts the day before their planned departure, the applicant’s ex- wife’s mother purportedly became ill and his ex-wife delayed her departure for this reason, with the intention of joining the applicant in Pakistan a week later. The Tribunal accepts on the applicant’s consistent evidence that the applicant was in regular contact with his ex-wife for approximately one week after arriving in Pakistan and that after this period of time he was unable to reach her on her mobile because it was switched off. It accepts as plausible that when the applicant contacted his ex- wife’s parents he was informed by her mother to forget about his ex-wife, that they had filed for a divorce and that he would be taken care of in Pakistan. The Tribunal has taken into consideration the documents the applicant submitted following the hearing which confirm that the applicant’s ex-wife instituted legal proceedings to have the parties marriage annulled in November 2014. The Tribunal accepts that the applicant had no knowledge that his ex-wife had sought to have the marriage annulled until he contacted the [City 3] Family Court in [Country 2] seeking a copy of his divorce certificate, as he had been led to believe that his ex-wife had petitioned for divorce. The Tribunal is satisfied on the documentary evidence before it that the applicant’s marriage was formally ended by way of annulment by his ex-wife.

12. The Tribunal accepts that the applicant continued to try to make contact with his ex-wife by calling her mobile phone and her parents number until he was kidnapped and physically harmed by his ex- wife’s [Relative 1]. The applicant explained in the hearing, consistent with his previous evidence to the Department, that a couple of days after speaking with his ex- wife’s mother, [Relative 1] called him, saying that he wanted to talk about what was happening in [Country 2] and asked him to meet him at a [venue]. He claimed when he went to the [venue], her [Relative 1] was waiting in a car and called him into the car to talk. The applicant stated that he had no concern at that point as he thought her [Relative 1] wanted to sit in the car and have a conversation. However, once he got in the car, there was another man in the car and her [Relative 1] said they would drop this person off at their place and then sit and talk. The applicant claimed that they drove to the outskirts of town and his ex- wife’s [Relative 1] then pulled over on a deserted stretch of road, near a [location]. There were about [number] people there and he was pulled out of the car and was beaten by these men until he lost consciousness. When he regained consciousness, he was lying on the ground in some sort of big shelter, and there was just one person sitting on a bench top, near a gate to the premises. The applicant recounted in detail how he was able to see that there was a bicycle near the gate once dawn broke and how this person was watching him and thought he was asleep. He explained that before it was full daylight the person started walking away from him, probably going to the toilet, and he took this opportunity to get up and make his way to the bicycle. The applicant explained that he was unable to walk for too long because he had immense [pain]. He stated that as he held the bicycle he made some noise and the person turned and came towards him but he got on the bike and started pedalling. However, the person got close to him and took something out of his waist and he felt a sharp pain in his back as he was hit with what he later learnt was a machete. The applicant claimed that as the person hit him, he fell and this gave him enough time to ride away despite the pain in his back. About 1-2km away he came across a [man] riding a motorcycle and asked him for help. The [man] called his father after he gave him his number and gave his whereabouts and stayed with him until his father came about 10 minutes or so later. When his father arrived he took the applicant to hospital where they first treated the wound [and] had an [x-ray].

13. The Tribunal has taken into consideration the applicant’s detailed and consistent evidence regarding what transpired during this incident and accepts that the applicant was abducted by his ex- wife’s [Relative 1] and beaten as claimed. It accepts that after he managed to escape, his wife’s ex- [Relative 1] called the applicant’s father and threatened that he will kill the applicant the next time.  

14. The Tribunal accepts that the applicant’s father went to the police to lodge a complaint but the police failed to do so. It accepts as plausible, particularly in light of independent information outlined below, indicating police have ignored honour crimes and even colluded with attackers, that the police instead tried to broker a settlement between the applicant and his ex- wife’s family.

15. The Tribunal accepts as plausible that a few days after the incident in which the applicant was beaten by his ex- wife’s [Relative 1] and his associates and managed to escape, resulting in him being cut with a machete, that the applicant went to [City 4], where he stayed with his [relative] for a month or so, before people armed with guns came to his [relative]’s home looking for him. The Tribunal accepts that the applicant’s [relative] eventually admitted that he had been there but had left a few days before and that these people then left. It accepts as plausible that the applicant did not return to his [relative]’s home after this incident and that he stayed at the home of a friend of his [relative]’s until he left Pakistan to come to Australia shortly after this visit to his [relative]’s home.

16. The Tribunal has taken into consideration the following advice received from Dr Shakira Hussein on 2 December 2009 in respect of marriages between different ethnic groups and love marriages:  

    Marriage outside your own ethnic community is generally disapproved of by most Pakistani families. Arranged marriages within a person’s own ethnic community tend to be the norm. This is very much the case across Pakistan as a whole. Western observers are often surprised to discover that affluent urban Pakistani families (who may otherwise seem outwardly no different to a Western family in their dress and behaviours) will nonetheless still expect their children to meet the expectation of entering into an arranged marriage with a partner from their own ethnic community. Some inter-ethnic marriage does occur, with family approval, where there are family connections of a caste and/or tribal nature but, generally speaking, marriages of this kind are not the norm. Moreover, love marriages which transgress family expectations can result in considerable family pressure being brought to bear. Again, violence could be a part of such pressure. In instances where the male partner to the marriage was from an ill-regarded community or caste then he, as much as the female partner to the marriage, could likely find himself the subject of a violent reprisal. In a city like Karachi where there is a long history of tensions and violence between the various ethnic communities such a response would be all the more likely.

    As per the above it could not be guaranteed that police would assist a couple who were being threatened by family members in such instances. It is just as likely that local police would assist the family in asserting pressure on the transgressing couple rather than offering effective protection to them.

    There have been some cases where higher courts have ruled in favour of couples in such predicaments in recent years but it should be noted that the progression of such a case to higher courts can take years and, in most cases, the offending couple will not have the opportunity or the means to argue their case in this way. The statistics associated with honour killing indicate the extent to which numerous individuals are never able to survive family reprisals. Moreover, in the lower courts the effects of the Qisas and Diyat law are such that the persons accused of such killings may be forgiven, or subject to little punishment or a financial settlement, if such is the choice of the murdered victim’s family.

17. The Tribunal notes in particular Dr Hussein’s reference to situations where the male partner to a marriage is from an ill-regarded caste or community, he could find himself the subject of violent reprisals. The Tribunal finds the applicant’s experiences, particularly once he returned to Pakistan, consistent with the information cited above, and his evidence regarding his ex- wife’s family’s objection to his marriage.  

18. According to the independent information arranged marriages are the traditional norm in Pakistan society and would usually be with a partner from their own religious or ethnic community. Couples who transgress from family expectations (and enter into “love” marriages) may be subjected to significant pressures, threats, and violence from their families, and may face becoming victims of “honour” crimes. Some families have sought to bring charges of kidnapping against partners they see as forcing their child (usually daughter) into marriage.

19. Whilst the majority of honour crimes involve the murder of women, men are nevertheless subject to targeting. The Human Rights Commission of Pakistan (HRCP) provided the following basic explanation for the term Karo Kari (the local name for Honour Crimes) in its annual report for 2014 which shows that the killing of men is an important function of the cultural phenomenon:

    Originally, karo (black male) and kari (black female) were terms for adulterer and adulteress, but it has come to be used with regards to multiple forms of perceived immoral behaviour. Once a woman is labelled as a kari, family members consider themselves authorized to kill her and the accused karo in order to restore family honour.

20. According to the same source, 923 women and 82 girls were killed in honour crimes in 2014. Many cases are unreported.  According to the Aurat Foundation, a non-government organisation, more than 3,000 women have been killed since 2008. The International Crisis Group (ICG) put the figure at 898 for both men and women.  It should be noted that, according to the ICG, the HRCP is the source for their figure.  Pakistan is thought to constitute a quarter of all honour killings committed in the world each year. No figures are available for the number of male victims in 2014. However, the HRCP report notes that many men were targeted:

    The total number of victims of these crimes is usually higher as both men and women are targeted in such incidents. The predominant cause of these killings in 2014 was alleged illicit relations where both the boy and girl believed to be involved in the relationship were murdered as a result. Firearms were the most commonly used method of carrying out these killings.

21. A March 2014 report by the Community Appraisal and Motivation Programme (CAMP), a Pakistan based NGO which receives some funding from western governments, provides some statistics for men killed in honour crime for the period 2001 to 2013:

    According to statistics gathered by the Human Rights Commission of Pakistan, 160 men were declared kara in 2001 and 134 in 2002. In 2003, out of 271 women who were victims of honour killing in Punjab, 13 were killed along with men, and in Sindh 148 men were killed as kara. The report presented to the Senate in July 2013 stated that 1,327 men were killed in honour crimes in the previous four years. Similarly, other honour crimes are not gender specific. For example, 11 men were victims of acid attacks in 2004. Out of all the crimes committed in the name of honour in 2010, 14 per cent of the victims were men. Similarly, it is not always men who are the perpetrators of honour crimes. In certain cases, women also subscribe to the tribal or customary values that underlay such crimes.

22. The following incidents were found while searching Pakistan based English language news sites. Whilst not exhaustive, the list indicates that men are often killed along with a woman owing to an illicit relationship. The perpetrators are usually members of the woman’s family or the husband of an adulterous wife. CAMP drew the same conclusions in a 2014 report from a study of honour killings carried out in 2010:

    The overwhelming majority of honour killings are carried out by the woman’s family. According to a research study based on honour killings in Pakistan in 2010, “the woman’s family was responsible for 78 per cent of the killings, while husbands of adulterous wives accounted for 16 percent and in three cases (six per cent) it was the man’s family that committed the murder.”

    ·On 8 September 2015 The Express Tribune reported that a man and a woman were killed in the Gulabad area of Charsadda, KPK. The two were allegedly having an affair. The killer seems to have been the brother of the woman’s husband, although the exact family relations as described by the report are uncertain.

    ·On 30 August The Express Tribune reported that a man and women were killed in the Kabal tehsil of Swat district. The two were siblings. The report states that the woman, who was married, had eloped with another man with the help of her family. The woman was with her brother when they were ‘spotted’ by her husband and killed. The husband had been reportedly ‘looking for the couple’.

    ·On 27 August The Express Tribune reported that a man and woman were killed in Mansehra, KPK. The two, who were originally from Gilgit-Baltistan, had married against the wishes of their families and eloped to KPK. The perpetrator was not identified, however, police reportedly believe that the case was an honour killing.

    ·On 27 August 2015 The News International reported that two men were killed in what their brother called an honour related matter in Nowshera, KPK. No other details were provided in the report.

    ·On 16 August 2015 Dawn reported that a man was killed in Islamabad. The man was reportedly married to a Pashtun woman. The marriage was controversial within her family, and the matter had been resolved by a Jirga and the woman had returned to her parent’s house. The man was killed while attempting to take his wife home by men riding a motorcycle.

    ·On 12 August The Express Tribune reported that a man and woman were killed in the Ghizer Valley, Gilgit-Baltistan. They had married against the wishes of their families. The report does not provide the identity of the perpetrators, and states that, whilst an investigation was under way, no arrests had been made.

    ·On 10 August 2015 The News International reported that a man was killed in Karachi. He had reportedly married ‘of his own will’ and moved to Karachi from Khairpur, Sindh, owing to ‘consequent threats’. Police were treating the case as an honour killing.

    ·On 7 August 2015 The News International reported that a man and woman were killed in Karachi. They had eloped in May and ‘run away’, although they seem to have been originally from Bin Qasim Town, a suburb of Karachi. Police were treating the case as an honour killing.

    ·On 5 August Dawn reported that a man and woman were killed in Quetta. The couple were shot by the woman’s brother.

    ·On 5 July 2015 The Express Tribune reported that a man was killed in Ghotki district, Sindh. Two rival groups of the Mahar tribe clashed after two of its members had eloped. The elopement reportedly ‘sparked enmity between the two’ groups.

    ·On 5 July The Express Tribune reported that a man was killed near Jacobabad, Sindh. The victim was attacked by a rival group from the Khosa tribe. Police were reportedly treating the case as an honour killing.

    ·On 12 May 2015 The News International reported that a boy and girl were killed in Lahore. They were reportedly seeing each other against the wishes of the girl’s family, who were responsible for the killings.

    ·On 19 April 2015 The News International reported that a man and woman was killed in what the paper reports was an honour killing in Nowshera district, KPK. No other information is provided.

    ·On 4 January 2015 Dawn reported that a man and woman were killed in Hyderabad, Sindh. The woman’s husband accused the victims of having an affair and, along with his relatives, killed them. The brother of the male victim accused the men of fabricating a claim of honour killing in order to settle a personal enmity.

    ·On 29 December 2014 The News International reported that a man and woman were killed in Shikarpur, Sindh. The couple were killed by the woman’s husband, who accused them of ‘illicit relations’.

    ·On 20 December 2014 Dawn reported that a young man was killed in Ferozewala, Punjab. The man had eloped with a woman against the wishes of her family. The woman’s brother reportedly kidnapped and shot the victim.

    ·On 22 October 2014 the author of an opinion piece about honour killings in Pakistan Today provided the following information about the alleged death of a male in his own area:

    Not long ago, one of my neighbours, a boy in his prime, fell to the same lot. Badly tortured with his eyes scraped with a knife, he was murdered in cold blood on the pretext of honour killing, and later his mother was asked to “Come and receive the body of your son or else we shall throw it away in the gutter.” This happened in one of the hustling districts of Sindh. What is more to your surprise is the culprit was standing shoulder to shoulder with the MPA in his election campaign.

    ·On 3 January 2014 The Express Tribune reported that three men were killed in Charsadda district, KPK. One of the men had recently married a woman against the wishes of her family. The two families had failed to reach an agreement in a Jirga. The woman’s family subsequently attacked the husband and his brother and father at their place of work, killing all three.

    ·On 1 June 2014 The Express Tribune reported that a man and his niece were killed in Faisalabad, Punjab. The man was accused of inappropriate relations with his niece, who was married. Both were reportedly killed by the man’s nephew, i.e. the brother of the niece.

1. Taking into consideration the applicant’s past experiences in Pakistan and the above information regarding the killing of both men and women who are party to what is viewed as illicit relationships, particularly at the hands of the women’s family, which is consistent with the applicant’s own situation, the Tribunal finds that there is a real chance that the applicant may face serious harm from  him his ex- wife’s family, particularly her [Relative 1], or people associated with them, if he returned to his home area in Pakistan and that the essential and significant reason he will be targeted for such harm is his membership of a particular social group of  people engaged in an inter-caste marriage.

2. 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. In Applicant S v MIMA [2004] HCA 25 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.

3. 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.

4. 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.

5. The Tribunal finds on the basis of the independent information cited above, that there is a collection of people who transgress societal expectations that they marry from their own religious or ethnic community in Pakistan, and as a result may be subjected to significant pressures, threats, and violence from their families, and may face becoming victims of “honour” crimes. The Tribunal accepts that members of this group have the common attribute of not conforming with traditional norms within Pakistani society in respect of marriage. It also accepts on the country information before it, that the reporting of cases of honour killings and other crimes committed against both men and women who contravene traditional and cultural expectations to marry within their caste or religion, establishes this particular group with a profile within Pakistani society. 

6. Considering all the evidence before it, including the country information cited above, the Tribunal finds that there is a real chance that on return to Pakistan, the applicant, will face serious harm in the form of physical violence from members of his ex- wife’s family, particularly her [Relative 1], or people associated with them. The Tribunal finds that such serious harm would involve systematic and discriminatory conduct and that the essential and significant reason for the harm is the applicant’s membership of the particular social group of  people engaged in an inter-caste marriage.

7. The Tribunal has taken into consideration the country information regarding the ability of the Pakistan authorities to provide protection to a person with the applicant’s profile. The Tribunal notes that in terms of adequacy of protection, according to Justice Kirby in MIMA v Respondents 152/2003 (2004) 222 CLR 1 what is required is a reasonable level of protection, not a perfect one [at 117]. The joint judgement in S152/2003 refers to reasonable measures to protect lives and safety of citizens including an appropriate criminal law and provision of reasonably effective and impartial police force and justice system. The Tribunal notes according to the recent DFAT report on Pakistan dated 15 January 2016, Pakistan’s laws and Constitution provide for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses state protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.

8. In the US Department of State Country Reports on Human Rights Practices for 2016 – Pakistan, lack of rule of law, including lack of due process and poor implementation and enforcement of laws was included amongst the most serious human rights problems in Pakistan and other human rights problems included a weak criminal justice system and lack of judicial independence in the lower courts.

9. Particularly in regard to honour crimes, impunity is considered a major issue, with reports indicating that police have ignored attacks and even colluded with attackers.[3]  Reports suggest that police have, in some instances, colluded with those carrying out the honour crime, or else, have been unwilling to intervene, either to prevent and attack or prosecute a case.[4] The 2014 CAMP report, provides the following information:

   While studying the dynamics of honour crimes in Pakistan, the role of the police should also not be ignored. Local police usually turn a blind eye to these cases. In Sindh, police officers are often informed beforehand of incidents of karo kari. People usually go to the police station with the weapon of the crime and present themselves to the police. Since it is a crime of honour, the police are expected to give some compensation, and in most cases police oblige and treat the perpetrators well, because deep down they think that the person has done something good. Sometimes the wadera or sardar also informs the police about the occurrence of a crime and directs them not to take any action. Corruption also plays a role. Police stations in Jacobabad are reportedly considered “gold mines” because of the high number of karo kari incidents in the district.[5]

   [3] Lari, M Z 2011, ‘Honour Killings’ in Pakistan and Compliance of Law, Aurat Foundation, November, p.70 < Accessed 10 October 2014 <CIS24288>; Gauhar, N A 2014, Honour Crimes in Pakistan: Unveiling Reality and Perception, 31 March, Community Appraisal & Motivation Program, p.28-29 < Accessed 8 October 2014 <CIS2F827D91307>

   [4] ‘Pakistan police defend actions over Lahore honour killing’ 2014, BBC News, 30 May < Accessed 10 October 2014 <CX1B9ECAB5804> ; Boone, J 2014, ‘Pakistan 'honour killing' inquiry exonerates police’, The Guardian, 31 May < Accessed 10 October 2014 <CX1B9ECAB5807>; Lari, M Z 2011, ‘Honour Killings’ in Pakistan and Compliance of Law, Aurat Foundation, November, p.70 < Accessed 10 October 2014 <CIS24288>

   [5] Gauhar, N A 2014, Honour Crimes in Pakistan: Unveiling Reality and Perception, 31 March, Community Appraisal & Motivation Program, p.28-29 < Accessed 8 October 2014 <CIS2F827D91307>

10. The Tribunal refers specifically to the applicant’s own situation, and the fact that the police did not act in relation to a complaint made by the applicant’s father in respect of the kidnapping and beating of the applicant by his ex- wife’s [Relative 1] and his evidence that they instead tried to broker a deal with his ex- wife’s family which would have resulted in him surrendering to them to ensure the safety of his own family.  The Tribunal finds this consistent with the information cited above and in light of the applicant’s past experiences and the independent information, it does not accept that the applicant would be afforded a level of state protection which citizens are entitle to expect (as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1). As such, the Tribunal does not accept that if the applicant were to face harm on his return to Pakistan, that state protection in accordance with international standards would be available to the applicant.

11. Based on the above, the Tribunal finds that the applicant faces a real chance of persecution in the reasonably foreseeable future for reasons of his membership of a particular social group of people engaged in an inter-caste marriage.

12. The Tribunal must consider whether the applicant’s fear of persecution is well-founded throughout Pakistan. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or ex- habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of “practicable”, to expect him or her to seek refuge in another part of the same country. What is “reasonable” in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC [2007] HCA 40 and SZFDV v MIAC [2007] HCA 41, per Gummow, Hayne & Brennan JJ, Callinan J agreeing.

13. The Tribunal has taken into consideration the submissions made by the applicant’s adviser that the threat to the applicant is operative throughout Pakistan given the applicant’s ex- wife’s family had been able to find him in the past when he relocated to [City 4]. Further, it was submitted that the issues concerning his ex- wife’s honour will not be resolved unless or until the applicant is harmed or killed, and their honour is restored, regardless of the time that has passed since the applicant’s relationship with his ex-wife ended. The Tribunal accepts the applicant’s contention that if he relocates to a part of Pakistan where he would have family present to support him, that this would assist in his ex- wife’s family being able to locate him more readily, as they did in the past when he went to stay with his [relative]. In terms of the applicant moving to an area where he did not have any family connections, the Tribunal has taken into consideration the applicant’s mental health issues, [that he] has suffered from since prior to his arrival in Australia and the evidence before it regarding the difficulties the applicant has endured in Australia as result of these issues, and does not accept that it would be reasonable for him to establish himself without any familial support. The Tribunal also accepts as plausible, in light of the applicant’s evidence regarding his ex-wife’s family’s affluence and connections in Pakistan, that there is more than a remote chance that the applicant could be found by her family even if he moved to an area of the country where he did not have family.The Tribunal therefore finds that the applicant would not be able to avoid the harm he fears from his ex- wife’s family by relocating elsewhere in Pakistan or that it would be reasonable for him to do so.

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

    DECISION

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

    Sydelle Muling
    Member