1610942 (Refugee) [2018] AATA 1213 (14 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1610942
COUNTRY OF REFERENCE: Pakistan
MEMBER:Michael Judd
DATE:14 February 2018
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named Applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other Applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named Applicant.
CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Muslim and Hindu – Social group – Involved in love marriage – Maher and Chaudhary caste – Islamic men who married Hindu women – Islamic men who shamed family – Victim of attempted shooting – Fear of forced marriage – Fear of assault and threats from family – Returnees to PakistanLEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, r 1.12, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510,
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198,
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445,
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559,
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437,
SAAD v MIMIA [2003] FCAFC 65
Selliah v MIMIA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347,
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76Any 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 Applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[First named applicant] is the primary Applicant in this matter. [Second named applicant] is an Applicant on the basis of being a member of [the first named applicant’s] family unit, having made no independent claims of her own to the department. For convenience, the Applicants will be referred to as ‘primary Applicant’ and ‘secondary Applicant’ throughout this decision.
The primary Applicant claims to be a citizen of Pakistan and the secondary Applicant claims to be a citizen of [Country 1]. The applications were made [in] August 2014 and the delegate refused to grant the visas [in] June 2016.
The delegate refused the applications because it was considered that the primary Applicant did not satisfy the requirements for the granting of a protection visa under Australian law. It was considered that the primary Applicant did not satisfy sub-section 36(2) of the Act which required him to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person. This decision was made known to the primary Applicant by email on or about [June] 2016.
More specifically, it is apparent to the Tribunal that the delegate refused the applications because:
a. The delegate found that the protection claims were not credible or genuine and that the primary Applicant did not hold a genuinely held subjective fear of being harmed in Pakistan;
b. In relation to complementary protection grounds, the delegate found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Pakistan that there is a real risk the primary Applicant will suffer significant harm as required under Australian law; and
c. For the above reasons,[secondary Applicant], as the member of the primary Applicant’s family unit in Australia, was also refused a protection visa.
RELEVANT LAW
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 sections 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
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).
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.
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.
There are four key elements to the Convention definition. First, an Applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Sub-sections 36(2)(b) and (c) provide as an alternative criterion that the Applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the Applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include people who are spouses of each other. The Tribunal is satisfied that [secondary Applicant], as the spouse of the primary applicant, is a member of his family unit.
Assessment of credibility
The Tribunal’s task of fact-finding has involved an assessment of the credibility of the primary and secondary Applicant’s. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[1]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[2] Foster J stated that “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.”[3] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[2](1996) 40 ALD 445.
[3]At 482.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[4] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[5]
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 undesirable. 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.
[4] (1996) 185 CLR 259.
[5]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an Applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an Applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the Applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[6] Nevertheless, as Burchett J counselled,[7] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs,[8] “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”
[8] (unreported, 17 September 1998)
Nevertheless, there is no rule that a decision-maker may not reject an Applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[9] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[10] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an Applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[11] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[12]
[9] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9
[10] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241
[11] See MIMA v Rajalingam (1999) 93 FCR 220
[12] (1999) 197 CLR 510 at [191]
CONSIDERATION OF CLAIMS AND EVIDENCE
The key matters for determination by the Tribunal in this matter are whether the Applicant is a person in respect of whom Australia has protection obligations as outlined in paragraphs 36(2) (a) or (aa) of the Act, or, is a member of the same family unit as a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the Applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
MIGRATION HISTORY
The primary Applicant
The following information is sourced from the decision record of the delegate. The primary Applicant originates from Lahore in Pakistan. He claims that his religion is Muslim and his tribal group is Chaudhary. He arrived into Australia on a [student] (Temporary) (Class TU) visa [in] September 2011, which expired [in] November 2012. [In] November 2012 he lodged an application for a [second] (Class TU) visa and was granted a [temporary] visa which ceased [in] November 2012.
[In] November 2012 the Applicant was granted a [student] Visa which ceased [in] March 2016; [in] March 2013 the Applicant departed Australia and visited Pakistan. He returned to Australia [in] April 2013 on a valid [student] (Class TU) visa. [In] February 2014, the Applicant lodged a subsequent dependent student visa application as being the spouse of a valid student. The secondary applicant was the dependent Applicant for this application. The Applicant was granted a [temporary] visa which ceased [in] March 2014. On that day, the Applicant spouse was granted a [student] (Class TU) visa as Primary Applicant. [In] August 2014 the Applicant lodged a subclass 866 protection (Class XA visa) application and was granted a [bridging] visa in association with that application.
[In] April 2015 the Applicant departed Australia and travel to Pakistan; he returned to Australia [in] May 2015 on a valid [student] visa. [In] December 2015 the Applicant travelled to [another country], returning to Australia [in] December 2015 on a valid visa.
The secondary Applicant
The secondary Applicant arrived into Australia [in] January 2009 on a [student] (Temporary) (Class TU) visa which was granted offshore [in] December 2008 and expired on 26 May 2010. On 26 May 2010 the secondary Applicant was granted a [student] (Temporary) (Class TU) visa which ceased [in] January 2011. A [temporary visa] was granted [in] April 2010 which ceased [in] May 2010.
[In] January 2011 the secondary Applicant was granted a [student] visa which ceased [in] March 2014. An [temporary] visa was granted [in] January 2011 and ceased [in] January 2011. [In] May 2011 the secondary Applicant lodged a dependent student visa application as the spouse of a valid student. [In] May 2011 the dependent Applicant was granted a [student] visa which was cancelled [in] June 2012 pursuant to section 128 of the Migration Act.
[In] July 2011 the secondary Applicant departed Australia to travel to [Country 1] where she remained until about[July] 2011. She returned to Australia on a valid [temporary] Visa. [In] March 2012 the secondary Applicant was included as a non-migrating Applicant in [an] onshore application.
[In] January 2013 the secondary Applicant departed Australia to travel to China where she remained until about [February] 2013, returning to Australia on a valid [student] visa. [In] February 2014 the primary Applicant lodged a subsequent entrant student visa application as the spouse of a valid student. The secondary Applicant was the dependent Applicant for this application. An associated [bridging] visa was granted that same day, which ceased [in] March 2014.
[In] July 2014 the secondary Applicant departed Australia to travel to [Country 1] where she remained until [July] 2014, returning to Australia on a valid [student] visa. [In] August 2014, the secondary Applicant was granted a [Bridging] Visa in association with the primary Applicant’s protection visa application. [In] December 2015, the secondary Applicant travelled to [another country] where she remained until about [December] 2015, returning to Australia on a valid [student] visa.
COUNTRY OF REFERENCE AND RECEIVING COUNTRY
For reasons outlined below, the Tribunal is satisfied that Pakistan is the country of reference for the purpose of assessing protection obligations to the primary Applicant under the Refugees Convention, and further, the Tribunal is satisfied that Pakistan is the receiving country for the purposes of section 5 of the Migration Act for the purpose of assessing complementary protection criteria.
With respect to the home area of the primary applicant the Tribunal is satisfied that his home area is Lahore and its immediate surrounds.
SECTION 36(3) CONSIDERATIONS
The primary Applicant has consistently claimed to be a citizen of Pakistan and that he does not hold citizenship or have a right to enter and reside in any third country, including the secondary applicant’s home country, [Country 1]. The Tribunal is satisfied that he does not have a right to enter and reside in [Country 1] in the absence of holding an appropriately issued visa. The Tribunal is satisfied section 36 (3) of the Migration Act does not apply to the circumstances of the Primary Applicant.
THE APPLICATION TO THE DEPARTMENT
The Tribunal has reviewed departmental file [and] its contents. Based upon documents in the file, the Tribunal accepts the delegate’s assessment as to identity with respect to both Applicants. The primary Applicant was born in [Lahore], Punjab, Pakistan, [in date]; the secondary Applicant was born in [Country 1], [in date]. The Tribunal accepts that the Applicants are nationals and citizens of Pakistan and [Country 1] respectively.
The Tribunal has located a certified copy of a marriage certificate, certified [in] April 2014, which establishes that the primary and secondary Applicants married [in] November 2013 before the Registry of Births, Deaths and Marriages in [Australia]. They remain lawfully married under Australian law. The Tribunal notes [see folio page 168] that marriage between the applicants was solemnised by the Imam of [a] Mosque according to Islamic law [in] November 2013, being three days before the Registry ceremony.
The primary Applicant’s claims to the department
The primary Applicant’s initial claims for protection are located at folio pages 40 to 43 of the department file. At folio page 43, the primary Applicant responded to a question as to why he had left Pakistan. He responded that:
a. He left because of family violation, race and religious problems. He stated that he has married in Australia with a [Country 1] girl [the secondary Applicant] and that it is a ‘love marriage’ and that their ‘religions are different’;
b. He stated that he belonged to a Muslim family and his wife, the secondary Applicant, belonged to a Hindu family;
c. this marriage was against the wishes of the parents of both families and other relatives. These people did not accept the relationship and tortured him. They also ‘pushed’ him to leave his wife.
d. because of their different religions their lives are in real risk and this is why they left their respective countries and are seeking protection from Australia.
The primary applicant responded to several specific questions in the application. In response to a question as to whether he had experienced any harm in Pakistan he responded that:
a. he had suffered from significant harm in his country because of family violation and split family relationships;
b. His parents and other relatives had punished him and they had ‘in human’ behaviour [sic] with him because he’d married against his parent’s wishes having married a person of different religion, caste and race;
c. His parents and other relatives had mentally tortured him and his wife to leave each other. He claimed he had already lost his first wife [first marriage – see discussion below] because of the attitudes of his parents and other relatives who did not like the relationship and forced them to leave each other;
d. He claimed that later, when the secondary Applicant had become pregnant, his family and his wife’s parents had pushed for the abortion of their child. He claimed that they lost that child because of stress and depression as a result of threats from the families.
In relation to a question as to what he fears may happen if he returns to Pakistan, he responded that he has a fear that his family and other relatives will torture him and his wife because of their different religions. He fears they will punish them and force them to leave and divorce each other. He fears they [the family] will push them to marry somebody else against their wishes, being something he cannot do and cannot ‘digest’.
In response to a question within the application as to who he thought may harm or mistreat him if he returns to Pakistan, he responded that he believes it will be his family, being his father, brother and other relatives. He believes they will mistreat him and his wife because of their different religions and the fact of their love marriage which is against the wishes of the family. He claimed he cannot take any risk by going back to Pakistan. In relation to a question as to why he thinks things will happen if he returns, he stated it will happen because he and the secondary Applicant have married against their families wishes as it is a love marriage and that they belong to different religions, race, caste and culture, which is not allowed.
He claimed that Pakistan is ‘basically an Islamic country where there are mostly Muslims’ and ‘it is not a multicultural country’ and that ‘all people and communities like arranged marriages of the same race, caste and religion’. He also claimed that whoever goes ‘out’ of their caste, race or religion, they are tortured and mistreated. Further, the Primary Applicant claimed that people in Pakistan are very ‘congested minded’ people and they [can] do anything to save their reputation in society. Because of this, he has doubts that people will forgive him and his wife, the secondary Applicant, for their different religions and marriage. He claimed that if they return to Pakistan they must be punished.
In response to a question as to whether he considers the authorities of Pakistan can, and will, protect him if he returns to Pakistan, he responded that the authorities in Pakistan cannot protect him and his wife because there is ‘not any good law and order’ and ‘the crime rate is very high’. He claimed that terrorism, theft, torture and killing is very common. He also claimed that ‘ anyone can do anything in Pakistan’ and ‘nobody is there to stop or ask because of the poor judicial system’. He claimed that ‘lots of people are being killed every day without reason and many people get tortured, threatened and killed because of love marriages, race and religion’.
The primary Applicant also claimed that people in Pakistan are not multicultural people and they are very racist and very strict as to caste and religion. He claimed that if he believed Pakistan’s authorities could protect them he would never have asked Australia for protection. He believes that he and his wife can never be safe anywhere in Pakistan and that they need Australia’s protection. The primary Applicant stated they would be very thankful to Australia for saving their lives and their relationship by protecting them. He confirmed that they are both living in fear, depression and stress.
The joint interview with the delegate [in] August 2015
The primary and secondary Applicants attended an interview before the departmental delegate on [in] August 2015. The decision record indicates that the following matters were discussed during the interview:
a.he [the Primary Applicant] has not sought to register his second marriage [to the secondary applicant] in Pakistan as he is concerned he would be tortured and threatened and he would be at risk from his parents and relatives. He is unsure if the marriage in [Australia] would be recognised in Pakistan;
b.he travelled to Pakistan in April 2015 to collect various personal documents that were being stored at his family’s home in Lahore. He stated that he was afraid that his family may destroy them because they did not agree with his new marriage;
c.he believed that during his visit in April 2015 he could attempt to talk to his father and brother about the new marriage to try to convince them to accept it;
d.he took photos of the secondary Applicant to Pakistan to show his family. At the time of entering Pakistan he had told his family about the secondary Applicant, but had not said that he had already married her in Australia. [The Tribunal notes the marriage in Australia occurred about four months prior to the April 2015 a trip to Pakistan];
e.he decided to risk his life and return to Pakistan in April 2015 notwithstanding his protection visa application was then being processed and he was losing hope. [the Tribunal notes that the protection visa application was lodged [in] August 2014, some eight months prior to the return visit to Pakistan];
f.he was assaulted by both his father and brother during the April 2015 visit to his family home in Lahore. His brother removed him from the house and he was told he must leave his new wife or he would no longer have any relationship with his family; he stated that his brother also threatened to shoot him;
g.the primary applicant offered that the reason his brother did not shoot him at the time of his removal was because neighbours could have heard and that they were watching what was happening, and also, that guns are illegal. He believes that if his brother used a gun his neighbours may have reported this to police;
h.after his removal from the family home, the primary Applicant stayed separately from his family, anonymously in a place that his cousin [Mr A] arranged for him. This place was located in [a place] about 15 kilometres from the family home;
i.his cousin [Mr A] is also not accepted by his own family and is also estranged from them;
j.[In] April 2015, during his stay in Pakistan, his father and brother came upon him when he was out buying food. His brother tried to shoot him with a pistol. This happened between about 10 a.m. and 12 noon whilst he was walking to the main market where he was staying. He was walking along the main transport road on the way to a market when his father and brother came along the road in the opposite direction on a [vehicle]. His brother shot at him with a pistol but missed him. The Primary Applicant ran to a safe place in the market where he called the police who later attended and took a statement. His cousin [Mr A] also attended following a phone call from the primary Applicant;
k.the primary Applicant lodged a report with Pakistan police [folio 162] however the police were not able to locate the applicant’s father and brother during his brief time in Pakistan. He claimed during the interview that he did not know if anything had occurred about the investigation. He was not able to depart Pakistan immediately after the shooting incident as he did not then have enough funds to change his return ticket to Australia. He would have had to pay an additional fee of possibly $[amount] to change his ticket;
l.he believes that his brother and father would not have known where he was living at the time of the shooting and that it was a chance encounter when they came across him; he stated it is normal for people to have guns in Pakistan for safety and that he believes his brother had a gun at the family home;
m.With respect to his marriage to the secondary Applicant, they attended the [mosque], [in] November 2014 and had their marriage solemnised by the Imam according to Islamic law. As required, he paid the secondary Applicant a dowry, being about $[amount]. The Imam asked if the secondary Applicant would convert to Islam and she gave an oath that she has accepted Islam, however only a friend of the Applicant and the Imam himself know of this;
n.He stated in the interview that if the primary Applicant’s family came to know about her acceptance of Islam they would not accept and she would be at risk. The secondary Applicant has attempted to talk to her own family about marrying a Muslim man however they said they would not accept; her mother said that she could not marry a Muslim man;
o.Whilst the Islamic marriage [in] November 2014 would be recognised in Pakistan and they can live in Pakistan legally, the primary Applicant refuses to take his wife to Pakistan. The secondary Applicant has never been to Pakistan. The primary Applicant met his wife when he was attending [an institute in] Australia in 2012 whereupon they commenced a relationship;
p.the primary Applicant was previously married but this was under Islamic law and was not recognised under Australian law. They were married [in] September 2012 over the Internet whilst the Applicant was in Australia and his wife in Pakistan. The primary Applicant’s family were not aware of the marriage initially and they became stressed and depressed when they were told. The previous wife was Muslim and from the same caste as the primary Applicant, however, she was poor and not of the same economic status as the primary Applicant’s family;
q.It appears that when the primary Applicant was in Pakistan in April 2013 he met his first wife face-to-face for the first time. They wished to rent a house together. The next day the Applicants family found out about the relationship and sent her [the first wife] back to her own family’s house. The Applicant stayed a further two weeks in Pakistan but was tortured mentally and physically by his family to leave his first wife. He returned to Australia; once he returned he was forced by his father to sign a document confirming he would divorce his first wife under Islamic law. The primary Applicant sent signed documents [divorce papers] back to his father.
r.He told the delegate that his father and brother gave his uncle power of attorney to settle the divorce without the Applicants consent [see folio 166]. The primary Applicant and his first wife were officially divorced [in] March 2014 and have had no contact since. The Tribunal notes that the divorce became official subsequent to the applicants commencing their relationship. The primary Applicant provided the department with a copy of the divorce deed which can be located at folio 167 of the file.
s.The Tribunal is satisfied that the Primary Applicant did marry a Muslim woman named [Ms B] [in] September 2012 over the internet whilst he was living in Australia and she was living in Pakistan. The Tribunal accepts that they divorced on or about [March] 2014;
t.The primary Applicant told the delegate that his father and uncle provided funds for him to come to Australia to study;
u.The primary applicant provided the delegate with a medical certificate which confirmed that the secondary Applicant had an abortion [in] October 2013 and that this arose from a joint decision to abort the pregnancy. The Tribunal notes that this was contrary to the primary applicant’s initial claims, being that the pregnancy had miscarried;
v.The Applicant’s mother died in 2004. The mentioned brother is married and the primary Applicant’s sister is single. The primary Applicant’s siblings reside with their father. He told the delegate that he called his father once a month and that he has told his family that he is no longer with the secondary Applicant and that he is arranging a divorce because this is what his father wants;
w.The primary and secondary Applicants have not considered residing in [Country 1] as the secondary Applicant’s family know people in [Country 1] immigration Department and the family will find out about the couple’s relationship. The applicants believe they would face the same issues in [Country 1] as they would from the primary Applicant’s family in Pakistan;
x.The primary Applicant did not lodge a protection visa immediately after his marriage to the secondary Applicant as he wanted to try to get his family to agree to the marriage; he wanted to be able to return to Pakistan after he finished his studies. He is now unable to return to Pakistan as he believes his family will find him anywhere because everyone knows him. He believes that the family would also ‘raise’ the police to assist to locate him;
y.The primary Applicant believes that due to caste issues and religious divisions in Pakistan there is nowhere safe for the couple to live; he does not believe his family would be happy if the secondary Applicant converted to Islam because his ‘family will never ignore the past’ and he can’t force her to change her religion. He does not expect her to fully convert to Islam;
z.The secondary Applicant told the delegate that while it would be difficult, she would convert to Islam to live a happy life with the Applicant in Pakistan but she is afraid the Applicant’s father and brother would find out and separate them; and
aa.The primary Applicant fears he would be putting his life at risk if he were to return to Pakistan as his father and brother have already attempted to shoot him during his last trip home in April 2015. He believes that his father, brother and other close relatives will torture, punish and kill him if he were to return as his wife is Hindu. He believes that his father and brother are angry because of him reporting the shooting to the police; he does not believe the Pakistan authorities will protect him, and if they did, it would only be temporary as there is no safety or security in Pakistan
THE APPLICATION TO THE TRIBUNAL AND THE TRIBUNAL HEARING
On 19 July 2016 the primary Applicant lodged an application with the Tribunal for review of the delegate’s decision to refuse the application for a protection visa. The Tribunal wrote to the Applicants on 15 February 2017 to invite them to appear before the Tribunal on 1 May 2017 to give evidence and present arguments relating to the issues arising in the matter. The Tribunal duly arranged for an interpreter in the Urdu language for the hearing.
The Tribunal received a hearing response which indicated that the Applicants would both be attending the hearing with their migration representative, being a [Ms C]. In the hearing response it was requested that the Tribunal receive oral evidence from two persons in addition to the Applicants, being [Mr D] and [Mr A] who is the primary applicant’s cousin.
On or about [April] 2017 the Tribunal received written submissions from [Ms C] dated [in] April 2017 upon which were attached various openly sourced articles and [online] conversation records involving the primary Applicant and his first wife. These materials have been reviewed and taken into consideration by the Tribunal. The Tribunal hearing took place over two days, being 1 May 2017 and 14 June 2017.
Evidence of the witness [Mr A] before the Tribunal
The Tribunal received evidence by phone from [Mr A] on 1 May 2017. The witness confirmed that he is the cousin of the primary Applicant and that he lives in Lahore. He has lived in Lahore for about nineteen years. He confirmed that the parents of the primary Applicant also live in Lahore.
When questioned by the Tribunal as to what was the ‘trouble’ between the primary applicant and his family, he told the Tribunal that the primary Applicant decided he would ‘go for a love marriage’ and that this is why there is a problem and that ‘people in Pakistan don’t like somebody who goes for a love marriage because it is against custom, particularly in the Punjab region’. He told the Tribunal that because of what the primary applicant has done in the past there are now arguments about the current relationship. He told the Tribunal that because of what the applicant has done there are now arguments about the relationship and that the applicant’s family don’t allow he and his wife to visit them; he told the Tribunal that the family have a right to say no if they want.
The witness last had in person contact with the applicant in May 2015 during his trip to Pakistan. The applicant had been staying initially with the witness at his house in Lahore. The primary applicant had come to Lahore to collect personal papers which were at his parent’s house. This witness accompanied the primary applicant to the house in company with some other friends. At the house his father and brother became angry with the primary applicant and the witness, the father saying that the primary applicant is ‘no longer his son’.
Six months after (being about October 2015) the primary applicant’s father and brother contacted the witness in person at his workplace to ask if he had his contact details to which the witness responded that he did not.
The Tribunal enquired as to whether the witness had any knowledge of the primary applicant being threatened, assaulted or intimidated whilst in Pakistan. He told the Tribunal that later during the 2015 trip the applicant had been travelling on a [vehicle] when his brother and father fired upon him. [The Tribunal notes that the evidence of the witness to the effect the applicant was on [traffic] conflicts with the evidence of the Applicant himself, which was that he was walking on a road.]
The witness received a phone call from the applicant and attended the scene whereupon he and the applicant called the police. Soon thereafter the witness arranged a place for the primary applicant to stay. The witness recalled that the applicant had explained the whole incident to the police. He told the Tribunal that he was aware that police had arrested the brother and father relatively soon after the incident but had released them, seemingly without charge.
The witness confirmed that after the shooting he had made new accommodation arrangements on the applicant’s behalf for him to stay elsewhere, in a rented room. The Tribunal enquired with the witness as to why the applicant did not leave Pakistan immediately, preferring to stay in a rented room for one and a half weeks. He responded that the police had asked the primary applicant not to leave the country as investigations had not been concluded.
The Tribunal enquired with the witness as to his perceptions of the dangers if the primary applicant returned to Pakistan. He responded that ‘the situation for humans in Pakistan is worse than dogs’, and that ‘anyone can kill anyone’ and ‘the police are corrupt and can’t be trusted’.
The Tribunal enquired with the witness as to his views of the possibilities of relocation for the primary applicant to which he responded that ‘he may be able to hide from his family for a week, a month or possibly a year, but eventually the family will ‘get’ him’. He said that the primary applicant mostly feared his father and [brother]. The witness was not aware of any other members of the family being of any particular threat to the primary applicant. He told the Tribunal that it was obvious that because the family do not accept their own son and brother, they do not accept his new wife. The witness told the Tribunal that he is of the strong opinion that the applicant will not be safe if he returns to Pakistan.
The witness told the Tribunal that he knows the witness [Mr D], who is a friend of the primary applicant. The witness recalled that [Mr D] travelled to Pakistan in 2013 with the applicant to assist him with attempts to reconcile with his family arising from conflicts concerning the first marriage.
The Tribunal noted that the witness did not testify as to the primary applicant being subjected to any actual violence and harm whilst at the family home, although he did confirm that the father and brother of the applicant had become angry with the primary applicant.
Evidence of [Mr D]
The witness gave evidence in person. This witness originates from Gujrad in the Punjab area, being about two hours drive from Lahore. He told the Tribunal that he first met the primary applicant while studying at [a] College of Australia located in [City 1]. The two men were in different classes, however they became friends whilst at the college. He confirmed that he was aware of the circumstances of the applicant’s first marriage but was not sure how they had met. He was aware that the primary applicant had married his first wife ‘over the phone’ and that he did not inform his family in Pakistan of the marriage until sometime later. He believed that the marriage was a ‘love marriage’.
The witness was aware of problems from the primary applicant’s family concerning the first marriage. The witness travelled to Pakistan with the applicant between [March] 2013 and [April] 2013 for a holiday. During this time he met the applicant’s family in company with the primary applicant. He tried to negotiate with the family in relation to the first marriage but the family did not like the fact of the marriage and they were upset. The family, being the applicant’s father and brother, told the witness to stay away from family matters totally.
During this 2013 meeting the primary applicant tried to convince the family to accept his first wife and the marriage, however these attempts were unsuccessful. His first wife was not present during those discussions. The primary applicant was very upset about the attitude of his family to his first marriage. The Tribunal enquired with the witness as to why the family were upset and he gave two reasons, being the family did not like the idea of the primary applicant marrying out of love, and that they had misgivings about the bride’s family. He told the Tribunal he was not aware of the particular issues that the family had with the first wife’s family.
He recalled that tempers were running very high at the meeting. The father and brother gave an ultimatum to the applicant that if he did not end the marriage they would not want to see him ever again. The witness told the Tribunal that whilst tempers were running high, there was no physical violence between the applicant and any member of his family during the meeting. He told the Tribunal that his understanding was that his family had forced him to divorce his first wife and had arranged for divorce papers to be sent to Australia for him to sign to progress a divorce. He said that the primary applicant was very upset but that he had to make a choice and that his family were putting pressure on his first wife’s family who lived near to Lahore.
The witness told the Tribunal that in relation to the marriage to the secondary applicant, the primary applicant had married ‘outside of his religion’ and that there was no way that his family in Pakistan would accept her as his wife. The witness told the Tribunal that the primary applicant knew that, by marrying somebody of the Hindu religion that there would be problems. He described the second marriage as also being a love marriage.
The witness told the Tribunal that in Pakistan no family is likely to accept somebody from outside of their religion and that this can be so serious that the family may kill the person. He said that even if the family were to accept the marriage, Pakistan society may not accept. He said that there are people in Pakistan who would be willing to do the killing and that both the applicant and secondary applicant are at risk if they go back to Pakistan.
The Tribunal asked the witness about the possibility of conversion from Hinduism to Islam to which the witness responded that if she [secondary applicant] genuinely becomes a Muslim there is a good chance she could be converted, but that would depend on whether she does decide to convert. He told the Tribunal that he is aware that the primary applicant’s family have said that if the primary applicant comes to Pakistan with his wife they are going to kill her.
He recalled that the primary and secondary applicant married about two years prior to the Tribunal hearing and that they first were married in a mosque in [City 1] and then they went to a registrar’s office in the city. The Tribunal notes from documentary evidence that the Islamic solemnization of the marriage occurred about three days prior to the marriage under Australian law and that it occurred at the [City 1] offices of Births Deaths and Marriages.
The Tribunal asked the witness about his views as to the possibility of relocation within Pakistan for the applicants to which he responded that even if they live in another city, Pakistan society and the parents are likely to know their whereabouts in due course, and that once they are there they will have no other options open to them. He told the Tribunal that in his view the police will not take action in these matters.
The evidence of the secondary applicant [secondary Applicant]
The secondary applicant [confirmed] she was born in [Country 1] and has [Country 1] citizenship. She had arrived into Australia in 2009 to study pursuant to a student visa. She met the primary applicant at a training college in [City 1] in 2012. The course she was studying was [a course]. Initially they became best friends but after some time she realised he had qualities that she wanted in a man and they commenced a relationship.
She told the Tribunal that the primary applicant is currently working as [an occupation]. She said that she had an advanced diploma in [an area] and a diploma in [another area] obtained in Australia. At the time of the hearing she was working at a [location].
She told the Tribunal that her family live in [Country 1] but she does not speak to them very often, the most recent being in 2014. She said that her family do not accept her relationship with the primary applicant because, as Hindus, they did not like other religions. Her family have never met the primary applicant. She had tried to convince her mother to accept the marriage but her mother said no and had threatened her several times. She tried to get her family to accept his religion and to accept the primary applicant into their family but her attempts were unsuccessful. The secondary applicant told the Tribunal that she had last been home to [Country 1] in 2013.
She married the primary applicant under Australian law [in] November 2013. They married at the offices of Births Deaths and Marriages in [City 1]. They had a formal Islamic marriage at the [mosque]. The Tribunal notes that the Islamic marriage ceremony occurred three days prior to the marriage under Australian law.
The witness followed the Hindu religion at the time of her marriages. She said that in Australia you can follow all religions and that she still follows ‘everything Hindu’. She told the Tribunal that whilst she has accepted the Islamic faith she is not following that faith one hundred percent as she is still Hindu. She qualified her answer by saying that whilst she accepts Islam she does not follow the Islamic religion. She said that following Islam would be very difficult as she has been Hindu from birth.
The secondary applicant told the Tribunal that she attends a Hindu [temple]so she can follow the four main Hindu festivals of the Hindu religion. She told the Tribunal that in her heart she is always Hindu.
The witness told the Tribunal that she had tried to convince her family in [Country 1], and in particular her mother, to accept the primary applicant into their family, however her mother had said no. She claimed her mother had threatened her several times.
The secondary applicant told the Tribunal that her husband always updates her about what is happening in Pakistan. The primary applicant has told her that his family will not allow and accept a different religion. She told the Tribunal it would be very difficult for her to accept Islam totally and follow the religion one hundred percent. She said that she believes that everywhere they would go in Pakistan people will find out they are two different people and it would be very difficult to be accepted by everybody.
The Tribunal questioned the secondary applicant as to her knowledge concerning threats towards the primary applicant. She responded that she was aware that when the primary applicant went to Pakistan [2015] he was attacked by his [brother] and father and that this included being shot at. The primary applicant had called her by phone from Pakistan in an upset state and told her he was scared. She said that she feared for both of their lives in the event that they were to be required to depart Australia, and that she feared both his family and her own family. When asked to clarify who she feared in her own family she said that it was her mother and her uncles and she feared they would kill both of them.
She told the Tribunal that in [Country 1] the Hindu community does not like other religions. She said that if you are Hindu and you have other relationships it can create a problem. She said that when her own family learnt about her relationship with the primary applicant they told her that if she wanted to remain a member of [Country 1] society she would have to leave him. She told the Tribunal that if they went back to [Country 1] that nobody would accept her.
She confirmed it had been a long time since the primary applicant had contact with his own family and that it made been some time during 2016.
The Tribunal enquired with the secondary applicant as to the circumstances of the loss of the couple’s first pregnancy. The secondary applicant confirmed that the child was not stillborn but that it was a planned termination, which the Tribunal notes, is contrary to the primary applicant’s initial claims to the department. The secondary applicant sought to explain the circumstances behind this, being that they were both in Australia on student visas and they did not have support of either family at the time. She was told by her family that if she did not leave the primary applicant the financial help they were providing from overseas would stop. The secondary applicant told the Tribunal that the family did stop providing financial assistance to her when they became aware of the relationship. It was because of this that the applicants jointly decided that termination was the only option available to them at the time.
The secondary applicant told the Tribunal that she had become pregnant again in 2016 and that this did end up in miscarriage. She believes the miscarriage occurred because she was stressed out because of threats from her own family. She said she was about two and a half months pregnant when she miscarried. At this point the secondary applicant became very upset, telling the Tribunal it was very hard to have lost two babies.
She told the Tribunal that while she had accepted Islam she had not converted one hundred percent to the religion. She told Tribunal that they could not ask for protection in [Country 1] because her father was prominent, being a political member and that everybody would know her. Following the evidence of the secondary applicant the Tribunal adjourned the matter for continuation on 14 June 2017.
The evidence of the primary [applicant]
Evidence was received from the primary applicant on 14 June 2017 with the assistance of an Urdu interpreter. He told the Tribunal that prior to coming to Australia he had always lived in Lahore and that his family continue to live in that city. He is familiar with Lahore. He said that his father was still alive but his mother had died in 2004.
His religion is Sunni Muslim and his ethnic background is Arian. He acknowledged to the Tribunal that he held only Pakistan citizenship and that he had no right to enter and reside in any third country.
He confirmed that he had obtained a bachelor [degree] from [a] University which he completed in 2010. He had performed various [financial] jobs whilst in Pakistan and had worked for two months as [another job].
In September 2011 he arrived into Australia on a student visa to study [a course] in [City 1] at [an institute in] Australia. His original intention was to stay in Australia to complete his studies and then return to Pakistan to help his father with his business. His father had multiple businesses including a [factory] and a business involved in selling [products] wholesale. His father is an [occupation]. The primary applicant told the Tribunal that his brother also worked in the business in [a different] aspect.
He told the Tribunal that he had completed studies for an advanced diploma [whilst] in [City 1]. At the time of the hearing he was performing [work] duties for a contract company.
The Tribunal enquired as to whether he was familiar with other areas or cities of Pakistan and he responded that he was only familiar with Lahore but had visited other cities such as Islamabad once or twice. He said he had last visited Islamabad when he was [age] for a three day visit.
He told the Tribunal that his [family] all live in the same house in Lahore and that he has not had contact with his father or [brother] since the shooting incident in May 2015. The primary applicant told the Tribunal that the relationship with his family was good when he first came to Australia in September 2011.
The Tribunal asked the primary applicant about his fears concerning returning to Pakistan to which he responded as follows:
i.they, being his family, can do anything, including threatening and killing him;
ii.the family will separate the applicants because they do not want them to live together as husband and wife;
iii.the family will force him to marry somebody else they approve of;
iv.because of what he has done the family can punish him;
v.he promised his first wife he would support her and his family made him break up with her;
vi.he reported the shooting in May 2015 to the police and he will be punished for that;
vii.the last time he went to Pakistan in May 2015 his family wanted him to marry somebody else;
viii.the Pakistan community will not accept the current marriage; and
ix.his wife’s family in [Country 1] are also very upset and he fears possible harm from them.
The primary applicant told the Tribunal that the social status of his father and brother is ‘really high’ and that they are politically very strong. His family is rich. His family are Sunni Muslim. He described the status of the Hindu people in Pakistan as being low, as 94% of the population in Pakistan is Muslim. He said that Hindus have a very low social status and that marriage between Muslims and Hindus is particularly frowned upon to an extent that there is to be no relationships between Muslims and Hindus.
The Tribunal questioned the applicant in relation to the circumstances of his first marriage. He told the Tribunal that he met his first wife [Ms B] on [social media] before he came to Australia. After arrival in Australia he kept up contact with her and they decided to get married. His first wife was Muslim. They were married in a video ceremony [in] September 2012 under Islamic law. The Tribunal enquired as to what were the long term plans for the marriage, considering his wife lived in Pakistan and he was living in Australia. He responded that his family did not know about the marriage initially, but his plans were that he would go back to Pakistan. The Tribunal enquired as to what were the problems concerning acceptance of his first wife and he responded that whilst her religion was the same as his [Islam], her caste was different to his family’s. His wife was of the Maher caste whereas he is of the Chaudhary caste.
He told the Tribunal that he went back to Pakistan in 2013 with his friend [Mr A] to talk to his father but his father found out about the marriage before he arrived. He said that his father was so upset and told him that he cannot ‘do’ a love marriage. His father was upset because he had gone against family beliefs as the family wanted an arranged marriage for him.
When he tried to go and talk to his family he was assaulted by his brother continuously. He was told to leave his first wife otherwise the family would kill him. He said his family did not listen to him so his only option was to take his first wife back to her parent’s house and he returned to Australia.
100. He told the Tribunal that both his brother and father forced him to divorce his first wife [Ms B]. Whilst in Australia he received by post, divorce papers for him to sign and send back to Pakistan. The divorce was subsequently finalised during 2014.
101. During 2015 he met his second wife, the secondary applicant, whilst attending college and they developed a friendship. After the second marriage had occurred he told his family in Pakistan and again they did not accept.
102. The Tribunal enquired with the primary applicant as to how the Islamic ceremony had come about in [City 1] to which he responded that he and his new wife had talked and that they decided they would go about it in ‘the Islamic way’. The applicants tried to get the approval of the father and brother for the marriage to no avail. He believes that the ceremony at [City 1] Mosque was an official Islamic marriage. In light of that response, the Tribunal enquired as to why his family had a problem with the relationship to which he responded that the family still did not accept his wife because her primary religion was Hinduism and that because she belongs to another country they would never accept her as a Muslim.
103. The primary applicant told the Tribunal that there were no problems in dealing with the [City 1] Islamic mosque, which had accepted the circumstances of he and the secondary applicant.
104. The primary applicant was questioned about events in Pakistan in April 2015 being when he travelled alone. He said that his return ticket was booked four weeks from his date of entry into the country and that he had booked his travel himself. His plans were to stay with his cousin [Mr A] in Lahore during which time he would talk to his brother and father to attempt to convince them to accept his new wife and the marriage. He told the Tribunal that his father and brother did not know that he was coming and that he was scared how they would react, based on their reaction to his first marriage. He said that whilst visiting his family he also needed to collect personal documents from the family home in Lahore. There had been an issue with his original birth certificate which meant that he had to personally go to Pakistan to correct the certificate. He told the Tribunal that he anticipated that his brother and father would be upset with him when they saw him.
105. He attended at his family’s house and went to collect the documents as he knew where they were. He talked to them about the marriage and showed the marriage certificate and photos of the marriage. He told the Tribunal that he had contacted his family during 2014 and told them that he had remarried another woman in Australia.
106. The Tribunal asked the applicant what happened at the house to which he responded that his father and brother had beaten him badly and that they would not accept a marriage [partner] from anywhere else. He said that they had both beaten him and slapped him badly and then forcibly removed him from the house, however there had been no bleeding. He told the Tribunal that he had gone to the house alone and when they started hitting him he called his cousin [Mr A] for assistance. [Mr A] arranged a rental place for him to stay for the remainder of his stay in Australia. He believes that the family would not have known where he moved to. The Tribunal noted that whilst giving evidence about incidents at the house the applicant appeared to be spontaneously recalling events; there were no noticeable delays in his recollection.
107. The primary applicant recalled the day of the shooting incident which he believes was [in] April 2015. He recalled it was about midday and that he was staying in [an] area of Lahore, unbeknownst to his family. He was walking to buy his lunch at a shopping area about ten minutes from where he was staying. He was walking on the left side of the road when he saw a [vehicle] approaching from in front. He was on his own at the time. He did not recognise the [vehicle] at the time. He saw a gun and after that he just tried to save his life. He said there were people around but not many. There were buildings on both sides of the road.
108. The applicant saw the faces of the riders and recognised it was his father and brother. The men were not wearing helmets. The primary applicant told the Tribunal that his father was riding and his brother was passenger and was holding the gun. He described the speed of the [vehicle] as being slow. When the [vehicle] was about eight meters from him he realised it was his father and brother. He described the road as being about ten metres wide.
109. He described his brother pointing the gun at him and firing the gun. When he saw the gun being fired he ran into a nearby shop. He believes there may have been two of three shots fired from the gun, which he described as a pistol. He believes the shots went towards the wall of nearby shops. When the shots started firing people came out of the shops. He described the shots as been fired from a position in front of him. The motorbike continued on its way after the shooting.
110. The primary applicant said that he called the police and then called his cousin. The police came and took a statement from him and took gun shells from the scene. He said he gave a report and the police asked him to go to the police station. The police could not locate the applicant’s father and brother at the time and it was upon returning to Australia he became aware that they had been arrested but they had not been charged with any offence. When asked by the Tribunal as to whether he was aware of why no charges were commenced he responded that his brother and father have money and lots of connections in politics.
111. The applicant told the Tribunal he believes it was five to six days after him being removed from his father’s house that the shooting occurred. He was not aware as to how they had found out where he was. He told the Tribunal that sometime after the incident his cousin [Mr A] received a call from his father and brother during which they threatened that on the next occasion they would kill him. The applicant stated that he believed that on two or three occasions his brother and father had attended at his cousins home to ask if he had helped the applicant; they told his cousin that if the applicant ever came again that they would ‘get him’.
112. The Tribunal enquired with the applicant as to why he did not leave Pakistan until sixteen days after the shooting. He responded that he could not afford to change his return ticket and that at the time his wife did not have money to assist in changing the flight. He told the Tribunal that the police wanted to investigate the shooting and told him that he could not leave until they had finished their initial investigations. He told the Tribunal that he had originally bought a return ticket for one month duration and that it had been his intention that if his father and brother had accepted the marriage he would have invited his wife to come to Pakistan to see his family. He told the Tribunal that if his father had accepted the relationship he believes his father would have helped pay for his wife’s travel.
113. The Tribunal enquired as to the applicants views as to whether the Islamic marriage ceremony in [City 1] would be recognised in Pakistan. He responded that he believes it would be acceptable but he would have had to register the marriage in Pakistan. He confirmed to the Tribunal that his wife had not converted from Hinduism to Islam but had instead accepted Islam. He reinforced to the Tribunal that his wife is from another country, a different religion and family background. The primary applicant told the Tribunal that it may be that the community will accept the marriage but in the back of his mind the community will still think of her as Hindu from a non-Muslim family. He told the Tribunal that his sister is supportive but that from 2015 he had had no contact with her. He said that he did not want to cause problems for his sister.
114. The primary applicant confirmed that his father has connections with politicians and that these politicians have, in turn, connections with Pakistan police; he confirmed that his brother had the same connections.
115. The Tribunal enquired with the primary applicant as to options concerning relocation within Pakistan as a possible means to ensure the safety of he and his wife. He responded by saying ‘how many weeks or months can we live somewhere else?…. eventually they will find us…. they have connections’. He described the Sunni community in Pakistan as being close to each other.
116. The Tribunal put country information to the primary applicant for his comment, being as follows: [13]
[13] DFAT Country Information Report- Pakistan: 15 January 2016 at paragraph 5.18
Options for internal relocation
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.
117. In response, the primary applicant responded that in Pakistan it is not a problem to find somebody and ‘if a person is rich with political connections they can do anything with anybody’. He told the Tribunal that if he returns to Pakistan the whole community will stand up against him and the secondary applicant and that they are in danger of being victims of honour killings. He said he believes that his family will have an obligation to kill them. He told the Tribunal that if the family don’t act, the community can kill in any event. He told the Tribunal that if his wife comes to Pakistan she will have to change her name and her views. If she does not, the community will not accept them.
118. The Tribunal queried with the primary applicant whether there had been consideration of the couple possibly moving to [Country 1]. The primary applicant responded to the effect that [Country 1] is a very small place and that there will be the same family problems should they return to that country. He told the Tribunal that his wife’s family does not accept him and that they hate Islamic people, and further, that [Country 1] is made up of between 85 to 90% Hindu people.
119. The Tribunal questioned the applicant as to why his initial claims for protection indicated that his wife had suffered a miscarriage when the truth was that the pregnancy had been terminated. The applicants admitted to the delegate at the protection visa interview that the pregnancy had been terminated. He told the Tribunal that the issues with the family and associated stress had forced he and his wife to abort the pregnancy; he admitted that his wife did not suffer a miscarriage. At this point the primary applicant became extremely upset during his evidence. He told the Tribunal that they decided to abort the pregnancy because they did not want the child to be without a parent. Further, he told the Tribunal that upon his wife becoming pregnant for a second time she subsequently did genuinely have a miscarriage and that she was in a deep depression at the time. The primary applicant told the Tribunal that his life was destroyed as he had lost a wife, baby and was in jeopardy of losing his second wife. He told the Tribunal that he can only have true happiness in Australia.
POST HEARING SUBMISSIONS DATED 6 JULY 2017
120. On or about 6 July 2017 the Tribunal received further written submissions from the applicant’s migration [agent]. The Tribunal has given due consideration to those submissions in arriving at its decision in this matter.
COUNTRY INFORMATION
121. The Tribunal has considered the following country information in arriving at its decision in this matter. Matters of particular relevance for this decision are italicised.
122. Current DFAT information is as follows:[14]
[14] See DFAT Country Information Report: Pakistan - 2017
3.25 Article 20 of Pakistan’s Constitution provides that ‘subject to law, public order, and morality, —(a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions’. Article 36 guarantees ‘the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services’. The Constitution also establishes Islam as the state religion (Article 2). Articles 41(2) and 91(3) of the Constitution require that the president and the prime minister of Pakistan respectively must be Muslim. Article 260 of the Constitution defines the term ‘Muslim’, and explicitly excludes from that definition several groups, including Ahmadis.
There are no official data on the size of different religious groups in Pakistan, but Muslims are widely thought to make up around 95 per cent of the population (approximately 75-80 per cent Sunnis and 15-20 per cent Shi’a). The remaining 5 per cent of the population is mostly made up of Christians, Hindus and Ahmadis, with smaller populations of Sikhs, Parsis (Zoroastrians), Baha’i and Buddhists.
With the exception of the Ahmadi community, most Pakistanis are able to practise their religion without significant interference from the state. DFAT assesses that there is generally only a low level of official discrimination in Pakistan because of religion (with the exception of the Ahmadi community, see Ahmadis, below). Violent attacks against religious ceremonies and places of worship by non-state actors tend to be the greatest impediments to freedom of religious practice in Pakistan. DFAT assesses that the risk of violence based on religion varies across different groups and locations within Pakistan.
An estimated 2-3 million Hindus live in Pakistan, mostly in largely self-contained communities in the rural parts of Sindh province. Hindus in Pakistan face low levels of official discrimination.
Living in largely self-contained communities reduces some of the risks for Hindus of societal discrimination and violence. Multiple credible sources told DFAT that the biggest risk facing the Hindu community is the kidnapping of young teenage Hindu girls. Once taken, these girls are often married and forcibly converted to Islam. Due to very high levels of familial and communal violence because of apostasy in Pakistan and the possibility of being accused of blasphemy (see Blasphemy, below), these girls are unable to revert to Hinduism. Young Hindu women in rural Sindh also face risks of so-called ‘honour killings’ if they have a relationship with someone against their family’s wishes (see Women, below). DFAT assesses that Hindus in Pakistan typically face a low level of official and societal discrimination, and a low risk of societal violence because of their religion.
However, the role of high-profile women from influential families in Pakistan is not representative of conditions for women in general. Women in Pakistan tend to live in segregation from men, particularly from men outside their families. According to the World Economic Forum’s 2016 Global Gender Gap report, Pakistan is ranked 143rd out of 144 countries in terms of its gender equality in the economy, politics, education and health. Women are able to participate actively in society in some parts of the country, particularly large urban centres such as Lahore, but women in more conservative, particularly rural, areas face significant restrictions on their activities. Women in many parts of the country are prevented from having contact with men other than their relatives. Women displaced by security operations in FATA were often reportedly unable to come out and stand in line for food rations and other supplies. Female-headed households in this situation were unable to provide for their families. Women and girls can be exchanged as a means of settling disputes between families, particularly in rural and tribal areas. Traditional and cultural norms in these areas often prevent women from voting in elections.
Violence against women is highly prevalent in Pakistan. According to the Human Rights Commission of Pakistan’s (HRCP) 2015 Annual Report, 939 incidents of sexual violence, 279 incidents of domestic violence, 143 cases of burning (including acid attacks, and cases where the victim was set on fire) and 833 kidnappings involving women were reported in 2015. These figures only include cases formally reported to authorities; the actual incidence of violence is likely to have been significantly higher. In 2014, the Aurat Foundation identified more than 10,000 cases of violence against women across Pakistan, based on newspaper reports of incidents. This number is also likely to understate significantly the actual incidence of violence against women in Pakistan due to the large number of cases that go unreported.
The HRCP also recorded 987 cases of ‘honour killings’ in 2015, with 1,096 female victims and 88 male victims. Domestic disputes, ‘unapproved’ relationships and the victims having exercised choice in who they married were typical motivations in these killings. The National Assembly passed legislation in October 2016 mandating imprisonment for convicted murderers in honour killing cases. Previously, perpetrators could be freed under Pakistani law if forgiven by the victim’s family. In the case of honour killings, the perpetrator was often also a member of the victim’s family. Women can be subject to mutilation (such as having their nose or ears cut off) as punishment for so-called ‘honour crimes’. Formal punishment for the perpetrators of these mutilations is rare. DFAT assesses that, in general, women in Pakistan face a high risk of domestic and societal violence and discrimination because of their gender. Women in Pakistan also face a high level of official discrimination, including in relation to the ineffectiveness of official processes to prevent violence against women and to prosecute the offenders. Women face legal discrimination on issues such as inheritance, property rights, family law, and formal and traditional judicial processes.
146. In the circumstances, whilst the applicant may genuinely have intended to recover documents and discuss his marriage with his family, the length of intended stay is strongly indicative of the primary applicant taking a holiday in his home country. His arrangements in April and May 2015 are not indicative of someone genuinely fearing for their personal safety in the view of the tribunal. The Tribunal does accept, however, that the primary applicant did visit his father and brother at the family home and that like the visit 12 months earlier, the discussion became heated over his marriage arrangements. Having considered all of the evidence both individually and cumulatively, the Tribunal does not accept that we primary applicant was assaulted during the April 2015 meeting. As indicated, the Tribunal would anticipate that there would be evidence of injury to the applicant, however the witness [Mr A] did not corroborate this in any respect.
147. The Tribunal has assessed the evidence with respect to the alleged shooting incident. There is no evidence before the Tribunal which would suggest that the applicant’s father or brother were made privy to the location of the primary applicant during his period of hiding. As such, the Tribunal considers that interaction between the primary applicant and his father and brother must have been entirely co-incidental. The Tribunal notes that the alleged incident occurred during daylight hours in a market area and that there were several other people in the vicinity. Initially, the Tribunal held concerns as to the plausibility of the applicant coming across his family members in such a random fashion and within a timeframe his brother was able to recognise him and discharge 2 to 3 shots in a public place. The tribunal questioned the primary applicant at length as to the detail of the alleged shooting and is not of the impression that the applicant was lying or embellishing upon the facts. Notwithstanding that the Tribunal does have doubts as to the credibility of the applicant’s evidence of other matters, the Tribunal finds the evidence of the applicant concerning the shooting to be plausible. The Tribunal finds that the shooting incident did occur as claimed by the applicant.
Factual findings
148. The Tribunal finds that the primary applicant is a Pakistan national and is of the Islamic faith. [In] November 2013 he entered into a Islamic marriage ceremony with the secondary applicant in [City 1], the effect of which was that the secondary applicant accepted the Islamic faith into her life. The Tribunal finds that the effect of this is that the secondary applicant has in fact converted to the Islamic faith. This is not to suggest, however, that the secondary applicant has abandoned the Hindu faith and its teachings; the Tribunal accepts that she does continue to involve herself with Hindu activities in [City 1]. The observations of the Tribunal are that the secondary applicant has converted to Islam through their marriage to an Islamic man but has continued to retain her Hindu beliefs and affinity to the Hindu religion notwithstanding.
149. The Tribunal accepts that during visits to Pakistan in April 2013 and April 2015, the primary applicant met with his family in Lahore, and particularly his father and brother, and that both meetings disintegrated into conflict and became quite volatile. The Tribunal does not accept that the primary applicant was assaulted nor is there evidence upon which it can make a positive finding that threats to harm or to kill the applicant were made. Contrary to the initial claims made by the primary applicant, there is no evidence to support a finding that any member of the applicant’s family engaged in torturing him, whether physically or psychologically. At best, the Tribunal accepts that there was at times significant pressure exerted upon him to separate from and divorce these women as marriages were contrary to the wishes of the family.
150. The Tribunal accepts that divorce documents were arranged in Pakistan at the request of the applicant’s father and that he signed those documents in Australia by reason of significant pressure being exerted upon him to do so. He was not, however, in any sense forced to sign.
151. The Tribunal accepts that following the April 2015 meeting, the primary applicant’s cousin [Mr A] did make alternative residential arrangements for the primary applicant in Lahore and that such arrangements were consequent upon the volatile meeting with the family.Further, the Tribunal finds that several shots were fired at the applicant whilst he was on foot in a market area several days after the meeting and that they were fired by a person most likely to have been his own brother. The Tribunal accepts the evidence to the effect that the father and brother were subsequently apprehended by police and released without charge for reasons unknown. The Tribunal accepts that the men were arrested at some point in time subsequent to the primary applicant’s return to Australia in May 2015. The present status of any investigation or charge is unknown to the tribunal.
152. The Tribunal finds that the disharmony between the primary applicant’s family and himself concerning the second marriage was for the reasons that the marriage was a love marriage (in other words, not ‘arranged’), and, that the applicant had married a woman of a religion not recognised by Islam. The Tribunal has given due consideration to issues of culture and race as to whether they were potential reasons for conflict, and whilst these cannot be discounted in entirety, the Tribunal is not satisfied upon the evidence that they were contributing factors.
Is the Applicant a ‘refugee’ for the purposes of Article 1A (2) of the 1951 Refugees Convention (Convention)?
153. Pursuant to the Refugees Convention, a person will be a refugee if they have a ‘nationality’ and are outside the country of their nationality, and, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are unable, owing to such fear, is unwilling to avail themselves of the protection of that country.
154. The Tribunal is satisfied that the primary applicant is a national of Pakistan and is presently outside of his country of nationality. The Tribunal is also satisfied that the primary applicant does not have a right to enter and reside in any other country, and as such, section 36(3) of the Act has no application
The Primary applicant will have a ‘well-founded fear of persecution’ if:
a) He fears persecution which involves ‘serious harm’, and, systematic and discriminatory conduct.
b) The persecution has an ‘official quality’ in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality;
c) The feared persecution must be for one or more of the reasons enumerated in the Convention definition, being race, religion, nationality, membership of a particular social group or political opinion;
d) The Convention reason or reasons must constitute at least the essential and significant motivation for the persecution feared;
e) He has a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention reason; and
f) The applicant must be unable or unwilling because of the fear to avail himself of the protection of their country.
The primary applicant’s claims of fearing persecution in Pakistan can be attributed to the following Convention based reasons:
a. Religion - a fear of persecution for reasons of religion arising from his relationship with, and subsequent marriage to, a woman who identifies with and continues to follow the Hindu faith;
b. Membership of a particular social group – a fear of persecution in Pakistan for reasons of his membership of a particular social group which may be described as ‘Islamic men who have married Hindu women’;
c. Membership of a particular social group – a fear of persecution in Pakistan for reasons of his membership of a particular social group which may be described as ‘Islamic men who have shamed their family’; and
d. Membership of a particular social group – a fear of persecution in Pakistan for reasons of his membership of a particular social group, which may be described as ‘returnees to Pakistan’.
The Tribunal is satisfied that the above Convention based reasons are the essential and significant motivations for the persecution as allegedly feared by the primary applicant. The Tribunal is also satisfied that the harm(s) as allegedly feared by the primary applicant would satisfy the definition of ‘serious harm’ for the purposes of section 91R (2) of the Act, in that, if carried out, the harm(s) would amount to a threat to life or liberty, significant physical harassment of the applicant, or significant physical ill‑treatment.
The Tribunal is also satisfied that the persecution as allegedly feared would involve systematic and discriminatory conduct in the sense it would be directed solely to the applicant, and by association, the secondary applicant.
The Tribunal is also satisfied that the allegedly feared persecution has an ‘official quality’ in the sense that country information is indicative of, in some cases, Pakistan police failing to take action to appropriately investigate incidents of ‘honour related’ harm and killings, and in some cases, assisting perpetrators of such persecution.
Does the primary applicant have a genuine and subjectively held fear of persecution?
The relevant question is whether the applicant genuinely has a present fear of a risk of serious harm in the reasonably foreseeable future. The Tribunal must assess whether an Applicant has a ‘well-founded fear’ from an objective viewpoint. If the Tribunal finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[25]
[25] SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].
The Tribunal is required to evaluate the objective circumstances so far as they are ascertainable and to give proper weight to any account of those circumstances as given by the Applicant.[26] Courts have determined that a well-founded fear means something more than ‘just plausible’, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[27] A fear of persecution will not be well founded if it is merely assumed or if it based on mere speculation. [28]
[26] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 12.
[27] Chan v MIEA (1989) 169 CLR 379 at 397.
[28] MIEA v Guo (1997) 191 CLR 559 at 572.
The question of whether an Applicant has as subjectively held and genuine fear of persecution is a question of fact to be determined by the Tribunal on assessment of all of the evidence. In this matter the Tribunal has had the benefit of not only reading the written claims of the applicant, but also from assessing the applicant and supporting witnesses, including the secondary applicant, whilst they testified.
In this matter the Tribunal accepts that during the course of two visits to Pakistan being in April 2013 and April 2015 the primary applicant was involved in two relatively volatile meetings which involved his father and brother. The meetings were volatile because of actions taken by the primary applicant to marry for love and to marry women that are not been approved or recommended by his family. The tribunal is also satisfied that during the visit in April and May 2015, the primary applicant was fired upon in a public place in daylight hours by his brother and that his father was present at that time as rider of the [vehicle] carrying the brother. In the circumstances the Tribunal is satisfied that the primary applicant holds a genuine subjectively held fear of suffering significant harm at the hands of his brother or father if he returns to the Lahore area of Pakistan, being his home area.
Does the applicant have a genuine fear founded upon a real chance of being persecuted for a Convention based reason?
A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[29] In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[30]
[29] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9. Note that Gaudron J did not adopt the ‘real chance’ test.
[30] Chan v MIEA (1989) 169 CLR 379 at 389.
A fear of being persecuted will be well-founded if there is a ‘real chance’ that a person will be persecuted. The Tribunal accepts that a ‘real chance’ must be a substantial chance as distinct from a remote or far-fetched possibility. It may be well below a 50 per cent chance, however. [31]
[31] See Chan v MIEA (1989) 169 CLR at 389.
In the case of Chan v MIEA, Dawson J [p.397-98] stated that ‘a fear can be well founded without any certainty, or even probability, that it will be realised…..A real chance is one that is not remote, regardless of whether it is less or more probable than 50 per cent.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[32]
[32] Chan v MIEA (1989) 169 CLR 379 at 397.
Having considered and weighed all of the evidence, both individually and cumulatively, the Tribunal finds that there is a ‘real chance’ of the applicant being persecuted in the Lahore area of Pakistan for reasons of religion, and, his membership of the two particular social groups, being:
i.‘Islamic men who have married followers of the Hindu faith’; and
ii.‘Islamic men who have shamed their family’
Having assessed the available country information, the Tribunal does not accept that the primary applicant or secondary applicant are at risk of suffering serious harm solely by reason of their status as being returnees to Pakistan, and as such, the Tribunal has discounted membership of this particular social group from its considerations.
The Tribunal accepts that the secondary applicant has, for the purposes of the Islamic religious law at least, converted to Islam. She has done this through solemnisation of marriage within the Islamic faith [in] November 2013. The Tribunal acknowledges that there may have been sound reasons for the secondary applicant to have done so in the circumstances that were faced at the time, however it remains a case that the marriage is likely to be accepted within Pakistan as an Islamic marriage. The Tribunal has considered the secondary applicant’s evidence which is to the effect that, notwithstanding her Islamic marriage and acceptance of Islam, she remains at heart of the Hindu faith and continues to follow that religion. The Tribunal finds that in the event that the secondary applicant was to follow her husband to Pakistan, the father and brother of the primary applicant would continue to view her as being Hindu notwithstanding her conversion. In relation to the community at large the Tribunal considers that whilst pockets of the community may accept her conversion, it is probable that significant portions will not and will be offended by the marriage of a Hindu woman to an Islamic man. The Tribunal accepts that the secondary applicant will live out her life as a follower of the Hindu religion if she follows the primary applicant to Pakistan.
Country information outlined above is supportive of the proposition that where a Islamic man marries a woman of the Hindu faith, the woman and man may be subjected to serious harm and what are known as honour killings. The Tribunal finds that if the primary and secondary applicants returned to Lahore and its surrounds there would be a real chance that they would be located by the primary applicant’s family and subject to serious harm for reasons of religion and the primary applicant’s membership of the particular social groups. In circumstances to try to unit finds that there is a real chance that the primary applicant, and by association, the secondary applicant will be persecuted in the Lahore area.
Does the real chance of persecution relate to all areas of Pakistan?
Country information considered by the tribunal with respect to relocation options indicates as follows:
Large urban centres such as Karachi, Islamabad and Lahore tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors….
Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers…..
Living in largely self-contained communities reduces some of the risks for Hindus of societal discrimination and violence. Multiple credible sources told DFAT that the biggest risk facing the Hindu community is the kidnapping of young teenage Hindu girls. Once taken, these girls are often married and forcibly converted to Islam. Due to very high levels of familial and communal violence because of apostasy in Pakistan and the possibility of being accused of blasphemy (see Blasphemy, below), these girls are unable to revert to Hinduism. Young Hindu women in rural Sindh also face risks of so-called ‘honour killings’ if they have a relationship with someone against their family’s wishes……
Women are able to participate actively in society in some parts of the country, particularly large urban centres such as Lahore, but women in more conservative, particularly rural, areas face significant restrictions on their activities. Women in many parts of the country are prevented from having contact with men other than their relatives……..
Karachi’s population is estimated at between 20-24 million people, making it Pakistan’s largest population centre. Security operations in Karachi have significantly reduced the level of militant and sectarian violence in recent years, although attacks are more frequent in Karachi than in Lahore or Islamabad. According to the SATP, around 250 people died in terrorism-related incidents in Karachi during 2016. This includes suspected militants killed in encounters with police. The relatively high number of casualties from insurgent, sectarian and criminal violence in Karachi is due in part to the city’s large population. A significant number of internal migrants live in poor conditions on the outskirts of the city. Credible sources told DFAT that Karachi is generally less safe for religious and ethnic minorities than other cities such as Lahore………
The Tribunal acknowledges that should the applicants settle in larger cities such as Islamabad and Karachi, the real chance of suffering persecution is likely to be somewhat less than living in Lahore. However, based upon the above country information, there remains a real chance of persecution irrespective of what area the applicants reside within Pakistan. In the event that the secondary applicant was to live her life as a follower of the Hindu religion, there is a real chance that she and the primary applicant will be subjected to violence amounting to serious harm. In the circumstances the Tribunal does not consider that relocation will alleviate the real risk that will present itself to the applicants. As such, the Tribunal finds that the real chance of persecution relates to all areas of Pakistan.
The Tribunal has given due consideration to whether the primary applicant and secondary applicant could access effective protection from authorities in Pakistan. Country information accessed by the tribunal does not support a conclusion that the primary and secondary applicants could obtain protection from Pakistan authorities such that there would not be a real risk of them suffering significant harm. To the contrary, several sources of country information support a conclusion that Pakistan police have on occasion been complicit in failing to adequately prevent or investigate instances of honour killing in Pakistan. In the circumstances the Tribunal is not satisfied that the applicants could obtain protection such that there would not be a real risk of them suffering significant harm.
In the circumstances the Tribunal is satisfied that the primary applicant has a well-founded fear of being persecuted for reasons of religion and membership of particular social groups for the purposes of Article 1 of the Refugees Convention.
CONCLUSIONS
In this matter, the Tribunal finds that:
a. The primary applicant is a national of Pakistan and non-citizen in Australia;
b. The primary applicant is outside his country of nationality;
c. The Primary applicant has a well-founded fear of persecution involving serious harm in Pakistan in the reasonably foreseeable future;
d. It would neither be safe nor reasonable for the primary applicant to relocate to another area of Pakistan;
e. The primary applicant could not obtain from an authority of Pakistan protection such that there would not be a real risk of suffering serious harm; and
177. For the reasons given above the Tribunal is satisfied that the first named Applicant is a person in respect of whom Australia has protection obligations. Therefore the first named Applicant satisfies the criterion set out in s.36(2)(a) of the Act.
178. The Tribunal is satisfied that the secondary applicant (as wife of the primary applicant) is a member of the same family unit as the primary applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the primary Applicant’s application. It follows that the secondary applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa have been met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
a.That the primary Applicant satisfies section 36(2)(a) of the Act; and
b.that the secondary Applicant satisfies s.36(2)(b) (i) of the Migration Act, on the basis of membership of the same family unit as the primary Applicant.
Michael Judd
Member
- AGLC
- 1610942 (Refugee) [2018] AATA 1213
- Case
- [2018] AATA 1213
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the primary applicant had a well-founded fear of persecution for reasons of religion and membership of particular social groups, and whether such persecution would involve serious harm. It also had to consider whether it would be safe and reasonable for the applicant to relocate within Pakistan and whether he could obtain protection from Pakistani authorities.
The Tribunal was satisfied that the primary applicant had a well-founded fear of persecution involving serious harm in Pakistan in the reasonably foreseeable future, and that relocation within Pakistan or obtaining protection from Pakistani authorities would not be a viable option. The Tribunal remitted the matter for reconsideration, directing that the primary applicant satisfies section 36(2)(a) of the Act, and the secondary applicant satisfies section 36(2)(b)(i) of the Migration Act on the basis of their family unit membership.
Orders
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