1607635 (Refugee)

[2016] AATA 4820

1607635 (Refugee) [2016] AATA 4820 (13 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607635

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:David Corrigan

DATE:13 December 2016

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 13 December 2016 at 5:14pm

Catchwords

Refugee – Protection visa – Pakistan – Inter-caste marriage – Honour killings – State protection – Relocation

LEGISLATION

Migration Act 1958, s.36(2)(a), (aa), (b), or (c), s 91, s.499

Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1

SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 473EC(2) of the Migration Act 1958 and replaced with generic information which does not allow the identification of a referred 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] April 2013 and the delegate refused to grant the visa [in] May 2014.

3. On 8 October 2014, the Refugee Review Tribunal (differently constituted) affirmed the delegate’s decision.  [In] May 2016, the Federal Circuit Court (by judgment) quashed the decision and remitted it to the Tribunal to re-consider and re-determine the application according to law.

4. The applicant appeared before the Tribunal on 9 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

6. 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

7. 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).

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

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

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

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

16. 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.

    State protection

17. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    Relocation

18. 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 former 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) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

19. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … 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". …

20. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Particular social group

21. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … 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". …

22. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    Complementary protection criterion

23. 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’).

24. ‘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.

25. 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

26. 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 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

27. The applicant’s claims can be summarised as follows. He was born in [Town 1] Khyber Pakhtunkhwa (KPK), Pakistan in [year].  He lived there from 1991-2001 and 2006-2009.  In 2001-06 he lived and studied in Karachi and in 2009-2011 in Abbottabad.  He lived in Islamabad from August 2011 to May 2012 before coming to Australia.  He is a Sunni who speaks, reads and writes Urdu, Pashtu and English. 

28. In 2009, the applicant met a young woman from an upper class family called [Ms A] and they fell in love.  He wanted to marry her but she was already promised in marriage to another man.  Some women in both families were aware of it but the men were not.  After some time, the men discovered it because they saw her number on his phone and they called him and told him to stop seeing her, but he continued to do so though not as often.

29. Late in 2009, [Ms A] married and on the wedding night she came to the applicant’s house saying she wanted to find a way to divorce her husband.  He took her inside to talk and her family came looking for her.  The applicant escaped out the back door but [Ms A] fainted.  The applicant went to study in Abbottabad.  He later spoke to [Ms A] by phone and she told him that her husband was refusing to take her back until the applicant was captured.

30. The applicant’s [relative] is married to [Ms A]’s [relative] and she told the applicant that [Ms A]’s family had paid a professional killer to murder him.  A close friend found a photo of [Ms A] in the applicant’s possession and to protect himself from guilt by association decided to post the photo on Facebook to lay any guilt with the applicant.  The photo is still online.  [Ms A]’s family took the matter to a Jirga which initially said they would not do anything.  However when they saw the photo online they convicted the applicant.  His family told them they could kill him to protect themselves.

31. In March 2010, the applicant’s father arranged for him to marry secretly.  It was held in his wife’s family home and no one was told what was going on.  The applicant continued to live and study in Abbottabad while his wife lived at home with her family.  He visited her house from time to time and in 2011 his wife gave birth to [twins] but one died a day later as [the child] could not be treated without going to hospital.

32. After coming to Australia, the applicant’s brother’s school was burnt down in an act of arson where no culprit was identified but they suspect [Ms A]’s family.  [In] March 2014, [Ms A]’s cousin shot dead his own [sibling] and [another relative] because they were having a forbidden relationship.  He has not been apprehended by the police and is one of the key family members encouraging [Ms A]’s father to kill her and the applicant.  [In] July 2016, a brother of the applicant was attacked by [a number] of [Ms A]’s brothers because of an online complaint lodged by the applicant in June 2014.  The applicant fears harm as a member of a particular social group consisting of “people who have infringed the Pashtun honour code”. 

    Country of reference

33. The applicant claims to be a Pakistani national.  Based on the copy of his passport and his identity card, I find that Pakistan is his country of nationality and also his receiving country.

    Assessment of claims

34. I conducted a long hearing with the applicant and questioned him extensively about his claims.  I have some concerns about his credibility and there were some inconsistencies in his evidence such as that given in his oral evidence to the Tribunal and his first statutory declaration as to whether his father supported him before the Jirga or told them that if they found him they would kill him.  However, overall his evidence was detailed and generally consistent about his relationship with [Ms A] and her family’s attempts to harm him and the later conflict with his family. 

35. The applicant’s claims were supported by a [witness] who gave corroborating evidence to the Tribunal and the statutory declaration of [another person] which I have given some weight in his favour to.  He has also submitted a translated copy of a police report, dated [date] July 2016, which refers to the assault of the applicant’s brother, a copy of an online complaint to the Pakistani police made by the applicant [in] June 2014, a copy of [police] instructions to the [Town 1] police to investigate, dated [date] July 2014, a translated copy of an agreement with the police from his family not to harm members of the other family, dated [date] August 2016, and a letter from the District Police Officer of [Town 1] dated [date] October 2014 that supports his claims.   He also submitted a copy of a medical report, dated [date] July 2016, pertaining to the injuries of his brother, copies of photos said to be injuries to his brother and a copy of bail granted to two members of the other family [date] July 2016.   Noting that the Australian Department of Foreign Affairs and Trade (DFAT) have stated that document fraud is endemic in Pakistan,[1] I have only given this written evidence limited weight in his favour. 

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan

1. The applicant’s account is also broadly supported by country information (including that submitted by the applicant) regarding the roles of Jirgas and Pashtun codes of honour and that honour killings and violence are not infrequent in areas of Pakistan including the applicant’s home province of KPK.  Pakistan is thought to constituted a quarter of all honour killings committed in the world each year whilst a 2015 survey showed that over a half of Pashtuns supported killing in the name of honour.  Country information also indicates whilst the majority of honour crimes in Pakistan involve the murder of women, men are nevertheless subject to targeting.[2]

   [2] Country of Origin Information Services Section, Department of Immigration and Border Protection, Pakistan: PAK CI150828152517149 – Honour Crimes – Karo Kari, 11 September 2015.

2. I accept that in 2009, the applicant met a young woman called [Ms A] and they fell in love.  I accept that he wanted to marry her but she was already promised in marriage to another man.  I accept that some women in both families were aware of it but the men were not.  I accept that after some time, the men discovered it because they saw her number on his phone and they called him and told him to stop seeing her, but he continued to do so though not as often.

3. I accept that late in 2009, [Ms A] married and on the wedding night she came to the applicant’s house saying she wanted to find a way to divorce her husband.  I accept that he took her inside to talk and her family came looking for her.  I accept that members of [Ms A]’s family surrounded the house.  I accept that the applicant escaped out the back door but [Ms A] fainted.  I accept that the applicant went to study in Abbottabad and that he later spoke to [Ms A] by phone and she told him that her husband was refusing to take her back until the applicant was captured.

4. I accept that a close friend found a photo of [Ms A] in the applicant’s possession and to protect himself from guilt by association decided to post the photo on Facebook to lay any guilt with the applicant.  I accept that [Ms A]’s family took the matter to a Jirga who found in favour of them and that the applicant could not return to the village.

5. I accept that in March 2010, the applicant’s father arranged for him to marry secretly.  I accept that it was held in his wife’s family home and no one was told what was going on.  I accept that the applicant continued to live and study in Abbottabad while his wife lived at home with her family.  I accept that he visited her house from time to time and in 2011 his wife gave birth to [twins] but one died a day later as [the child] could not be treated without going to hospital.  I accept that in June 2014, the applicant’s brother was attacked by a member of [Ms A]’s family but did not want to report it.  I accept that the applicant lodged an online complaint.  I accept that in July 2016, a brother of the applicant was attacked by [a number] of [Ms A]’s brothers.  I accept that the applicant is of continuing adverse interest to members of [Ms A]’s family.

6. Given the country information set out above, I accept that the applicant is a member of a particular social group consisting of “persons who have infringed the Pashtun code of honour”.  Given his individual circumstances and the country information, I find that there is a real chance that the applicant, now and in the reasonably foreseeable future, for reasons of his membership of this particular social group, will face serious harm (in the form of significant physical harassment or ill-treatment) in his home area of [his home] district.  This will involve systematic and discriminatory conduct.   However, I find that this is localised to his home area.

   State protection

7. Pakistan's parliament has recently unanimously passed legislation against "honour killings" - mandating life imprisonment, 25 years in prison, for convicted murderers even if the victim's relatives forgive them.[3]  DFAT have however commented:

   5.1 … DFAT assesses state protection in Pakistan is limited by resources shortages, personal means and, in some cases, political will.

   …

   5.7 Although there are variations in the effectiveness of individual police forces in Pakistan, their capacity to maintain law and order is generally limited by a lack of resources; poor training; insufficient and outmoded equipment; and manipulation by superiors, political actors and the judiciary. Common perceptions of police corruption undermine public confidence in the country’s police forces.[4]

   [3] Al Jazeera, Pakistan adopts new law to tackle ‘honour killings’, 7 October 2016.

   [4] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

8. Given this authoritative information, I find that the applicant would not be able to access state protection in accordance with the principles in MIMA v Respondents S152/2003.

   Relocation

9. Pakistan has a huge population of 190m and a number of very large cities including Lahore has a population of 10 million people including one million Pashtuns and Islamabad has a population of two million people and has a large number of Pashtuns.  The Pashtun community in Lahore has told DFAT that its members feel safe and do not feel threatened by sectarian violence.[5]  The applicant commented that he feared being identified by people from his village in such locations; however given the very large populations, I consider the chance of him being identified and then seriously harmed by members of [Ms A]’s family outside his home area to be remote.

   [5] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

10. Considering the country information as a whole and the applicant’s individual circumstances, even when considered cumulatively, I find that in Lahore and Islamabad/Rawalpindi, he does not face a real chance of serious harm amounting to persecution in the reasonably foreseeable future at the hands of [Ms A]’s relatives or anyone else anyone else on account of his membership of a particular social group or any other Convention reason.

11. There are a number of factors that suggest that it would be reasonable for the applicant to relocate outside his home area to cities such as Lahore and Islamabad and Rawalpindi.  DFAT have commented:

    5.18 Because of Pakistan’s size and diversity, there are viable relocation options for members of most ethnic and religious minorities: internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from non-state instigated discrimination or violence. Many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and better opportunities for employment, access to services and state protection than rural or smaller urban areas.[6]

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

12. Both Lahore and Islamabad have large migrant Pashtun populations which could assist with the applicant’s integration and the country information indicates that Pashtuns doing very well in business as evidenced by the fact that 70% of businesses in Lahore are owned by Pashtun migrants.  DFAT have referred to higher costs of living in larger cities but they comment that this can be offset by higher wages typically received in these locations. DFAT have commented that there is a range of accommodation options in cities like Lahore and Islamabad and no evidence to indicate any accommodation shortages.[7]

    [7] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016

13. The applicant is a [age] year old man and can speak, read and write English and Urdu which are official languages in Pakistan.[8]  He also has experience in having lived outside his home area in Pakistan in both Abbottabad and Islamabad before.  However, he has no specific skills and only very limited work experience of having worked in McDonalds in Australia for six months.  He would not have family support in areas outside his home area and he has a wife and two children to support and provide food and accommodation to.

    [8] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 15 January 2016.

14. Considering the country information as a whole and his individual circumstances, I consider that it would not be reasonable for the applicant to move to another part of the country where he has no family or social support network.  Accordingly, I find that relocation to a place outside his home area is not a reasonable option for the applicant.  I therefore consider his fear of persecution is well-founded.

15. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

    Conclusions

16. 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

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

    David Corrigan
    Member