1700696 (Refugee)

[2018] AATA 1878

1700696 (Refugee) [2018] AATA 1878 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700696

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Alison Murphy

DATE:16 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

Statement made on 16 April 2018 at 5:28pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Particular social group – Pakistani women acting outside of social marriage conventions – Forced marriages – Family violence – Honour killings – Female higher education student – Violence against women – Young woman without male protection – Credibility issues – Internal relocation – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

SZATV v MIAC (2007) 233 CLR 18

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is [an age] year old female from [Town 1], Punjab in Pakistan.  She first arrived in Australia [in] February 2014 as the holder of a student visa and applied for the protection visa on 18 June 2014.  On 19 December 2016 the delegate refused to grant the visa, not being satisfied the applicant was a person owed protection by Australia.

3. The applicant appeared before the Tribunal on 19 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her brother [named] in the context of his own related protection claims (AAT proceedings [number]). The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

4. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is, whether she is 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 of such a person. A summary of the relevant law is set out at Attachment A.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Credibility

6. I acknowledge the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

   [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482.

7. The delegate did not accept the applicant’s claims to be true, nor the documents she provided in support of her claims to be genuine.  At the first hearing I discussed with the applicant my concerns about the credibility of the applicant’s claims and the genuineness of documents submitted.  As a result of enquiries undertaken by the Tribunal after the first hearing, many of those issues have been resolved. The Tribunal’s particular findings are discussed below.

   Country of nationality

8. It is not in dispute that the applicant is a Pakistani national and she travelled to Australia on an apparently genuine passport issued by the Islamic Republic of Pakistan.  I find the applicant is a citizen of Pakistan and have assessed her claims against that country.

   Claims for protection

9. In essence, the applicant claims to fear harm from her father whom she states will seriously harm her if she returns to Pakistan, because she travelled to Australia to escape an arranged marriage and to undertake tertiary studies at a co-educational institution. 

10. She claims to fear harm on the basis of her membership of the particular social groups:

    ·Women who are subjected to forced marriage, and forced marriage to settle disputes, in Pakistan;

    ·Pakistani women at risk of honour killings, family reprisals and family violence in Pakistan;

    ·Women who are unable to pursue higher education in Pakistan; and

    ·Unaccompanied Pakistani women with no male support in Pakistan.

11. In support of her application she has provided a large number of documents, including:

    ·A statutory declaration made 28 July 2016;

    ·Notices of disinheritance of the applicant and her brother published in newspapers by her father;

    ·A newspaper article published in [named] newspaper dated [in] February 2014 stating her father has beaten and attempted to kill her because she wants to go abroad to study;

    ·A newspaper article published in [a different] newspaper dated [in] February 2014, stating her father has beaten her because she wants to go abroad to study;

    ·A receipt (and English language translation) for the sale of [specified assets] by the applicant’s mother dated [in] December 2013;

    ·Police reports (and English language translations) dated [in] February 2014;

    ·Documents from [Court 1] (and English language translations) dated [various dates in] February 2014;

    ·An outdoor patient ticket indicating the applicant had an x-ray [in] February 2014;

    ·An Injury Plan dated [in] February 2014;

    ·Two photographs of two men fighting over a gun while a woman lies on the floor, stated by the applicant to be photographs taken by her younger brother while her father was beating her on [a date in] February 2014;

    ·A report from a consultant psychiatrist dated [in] July 2016 recounting her protection claims and her mental health symptoms in Australia which are described as ‘[list of symptoms]’ and confirms she is taking [a specified medication] and ongoing follow up to ensure her mental state remains stable;

    ·Medical certificates from [a health service] indicating she was suffering severe depression on [dates in] March 2014 and [April] 2014;

    ·Australian Red Cross ACCORD ‘Pakistan: COI Compilation August 2016’ and Human Rights Watch ‘This Crooked System: Police Abuse and Reform in Pakistan’;

    ·Letter from [the applicant’s] Advocate [Court 1] dated [in] September 2016, stating he applied for a certified copy of the documents from the applicant’s case against her father seeking the return of her passport;

12. At hearing the applicant told me she came from a middle class family who were financially comfortable as a result of her father’s [business].  She stated her father was not religious but was socially conservative, allowing her brother to continue his studies overseas but refusing to allow the applicant to continue her studies past [specified] grade.  She gave evidence that he allowed her to study to [specified] grade at single sex schools as it was usual for girls in their social circle to complete [that level].  The applicant attained [excellent] grades in her [school] and wanted to continue on and study [a tertiary course], but her father told her completing [specified] grade was enough and she should stop her studies and get married.

13. The applicant gave evidence her father had been violent towards the female members of her family all her life, in particular her mother whom he regularly beat severely.  She stated that when she was in [an earlier] grade her father broke her arm while beating her when she returned from a friend’s house and on one occasion her mother required stitches to [a body part] after being beaten by her father.  She stated the violence suffered by her mother at the hands of her father meant her mother wanted something different from her, which was why her mother sold [certain assets] to pay for the applicant’s ticket to Australia and her first semester’s tuition.

14. She gave evidence that during 2013, while she was in her final year at [her] College, her father called her into his room where he was having tea with a man with white hair and wrinkles, who was older than her father.  They said salaam and then she left the room.  Immediately after she got her intermediate school results, her mother told her she was to be married to that man.  Her mother was upset and worried for the applicant and her brother suggested the applicant travel to Australia to study and avoid the forced marriage.  Her mother sold her [specified assets] and contacted an agent and made arrangements for the applicant to get a student visa.

15. The applicant gave evidence that father didn’t know about the application for a student visa at first.  She doesn’t know how he later found out, but on [a date in] February 2014 he confronted her and asked her if she had applied for a visa but she denied it.  He demanded she bring him her passport which did not contain a visa stamp and she did so.  He refused to return her passport and beat her until her [Relative A] intervened to stop him.  She went to hospital where she was treated for bruising and then to the police, who refused to take her report saying there was no evidence.  She returned to the hospital to obtain medical reports and took them back to the police station, where they lectured her on the sacred role of her father but wrote up a First Information Report.

16. She did not return home, but stayed at the home of a friend of her mother who lived about an hour away and applied to the court to have her passport returned from her father.  Her mother’s friend referred her to a lawyer who drew up the documents on the same day and lodged proceedings in the court on [a date in] February 2014.  The first hearing was [later in] February 2014 where the court listened to the evidence of the applicant and her father and [days later] her father returned her passport to her, having been persuaded to do so by her [Relative A].  Her lawyer also commenced proceedings to force the police to act on her complaint but the applicant departed Pakistan on [a later date in] February 2014, before either proceeding was finalised.

17. At hearing I discussed with the applicant my concerns about the credibility of her claims and the genuineness of the documents she had produced. 

18. Firstly, the photographs purporting to be of her father beating her had the appearance of being contrived given that she hadn’t known it would happen and yet managed to arrange for the attack to be photographed. The applicant gave evidence that the photographs were taken by her brother who was hiding in the next room at the time, stating she had asked him to hide and take photos because her mother told her that her father had asked about whether she had obtained a passport and her mother had admitted she had.  She stated she knew her father would ask about it that day so she asked her brother to hide and take photos. I noted the photographs appeared to show her father threatening her with a gun which she had not mentioned, but the applicant stated her father was not holding a gun but a wooden stick.  On closer examination of the photos I accept that to be true.  However, I remain concerned that the photographs may be contrived.

19. Secondly, I discussed with the applicant that a number of documents on her student visa application file indicated her father was aware of and supportive of her application to study in Australia, in particular her father’s financial records, personal identity and his letter to the visa officer at the Australian High Commissioner in Islamabad stating he would meet all of his daughter’s expenses.  I discussed with the applicant that these matters caused me to consider that she had fabricated her claims that her father opposed her studies in Australia.

20. The applicant told me her mother and agent had made all the arrangements for her student visa application using an agent.  When I pointed out she had signed the visa application she agreed, stating she signed where the agent told her to sign and she believed the agent obtained her father’s financial and identity documents from her mother and also managed to obtain some documents fraudulently from the bank.  She stated the affidavit purporting to be signed by her father was fraudulent and her father never would have supported or financed her studies in Australia.

21. I discussed with the applicant that the fact she acknowledged providing false documents in support of her student visa application may indicate a willingness to do so in respect of her protection visa application.  The applicant stated she had been [age] years old at the time, she had been reliant on the advice and assistance of her mother and brother and she did so only because she feared for her life in Pakistan and had no other option.  She stated the only false document on her student file was her father’s affidavit and the others were all genuine, although obtained and provided to the department without his knowledge.

22. I discussed with the applicant my concern that the court documents she had provided in the current proceeding may not be genuine.  The applicant maintained that they were genuine and they reflected court proceedings that had genuinely taken place. 

23. Following the first hearing, I asked that the Australian High Commission in Islamabad be requested to make enquiries of [Court 1] as to the genuineness of the court documents submitted by the applicant.  In support of that request I provided the documents relating to civil proceeding number [specified] in [Court 1], being a suit for the recovery of a passport and an injunction, the plaintiff being [the applicant] and the defendant being [name].

24. Those court documents include an application for an injunction preventing the applicant’s father from destroying the applicant’s passport pending the outcome of the court proceedings, an application for the return of the applicant’s passport and affidavits from the applicant’s advocate setting out facts which are generally consistent with the applicant’s claims.

25. I asked that the existence of that proceeding and the judge and party details be verified and for confirmation that the initiating application was in fact lodged with the court by the applicant.  I also asked for copies of any orders made by the court and whether the proceeding is ongoing.  I made similar enquiries in relation to the court documents submitted by the applicant’s brother in his own case, noting these documents relate to separate proceedings arising out of similar facts.  I also provided the letter from the applicant’s lawyer in Pakistan purporting to verify the documents and asked that the Australian High Commission verify the author is a practising lawyer and that he authored the attached letter.

26. On [a date in] February 2018 I received advice from the Australian High Commission that [Court 1] had confirmed that the proceedings referred to existed and the names of the parties, presiding magistrates and court reference numbers were correct.  The High Commission’s response also confirmed the advocate named in those proceedings was a practicing advocate in [Town 1]. 

27. The response stated that the attachments to document [number] contained some anomalies in that the documents were incomplete, did not carry the court stamp and the date appeared to be incorrect. I was advised that the court did not confirm other details about this case and had not responded to the other questions put to it.  I am unable to locate document [number] in the documents provided by the Tribunal to the Australian High Commission or any of the other documents before me and therefore I cannot identify the document containing the anomalies. 

28. However, I consider the response of [Court 1] broadly corroborates the applicant’s claims and I note the events described in the verified court documents are broadly consistent with the applicant’s claims.

29. According to one study by Pakistan’s National Commission for the Status of Women, the overwhelming majority of marriages in Pakistan are arranged (77.1 per cent). [2] The Department of Foreign Affairs and Trade (DFAT) advises violence against women is highly prevalent in Pakistan and successful prosecutions are rare. Honour killings are also reported in Pakistan, with 1,096 female victims reported in 2015, motivated by domestic disputes and ‘unapproved’ relationships.  It is reported honour killings are often perpetrated by members of the victim’s family.  DFAT assesses that, in general, women in Pakistan face a high risk of domestic and societal violence and discrimination because of their gender and a high level of official discrimination.[3]

    [2] The National Commission for the Status of Women was established in 2000 by the regime of Pervez Musharraf. In 2012, the commission became autonomous from government with the passing of the National Commission on the Status of Women Act, 2012. See < and <

    [3] DFAT 2017 DFAT Country Information Report: Pakistan 1 September at 3.127 – 3.131.

30. Similarly the UK Home Officer reports domestic violence is endemic in Pakistan, citing the UK Department for International Development’s 2014 report that nine out of ten women have experienced domestic violence, not just from their partners. The Pakistan Demographic and Health Study reported 33% of married women had experienced violence from their spouse in the past 12 months.  A further study published by Rutgers WPF in 2013 following a household survey of 4,885 woman in Sindh, Punjab and Balochistan reported that abuse was not limited to husbands, but was also perpetrated by other family members.  It found 85% of women had suffered domestic violence in the past 12 months, 75% of women suffered physical violence after marriage and sexual violence after marriage was reported by 25% of women over 15. The UK Home Officer reports honour crimes usually take place when a man claims a woman has brought dishonour on the family and the majority of victims are women, although men are also affected.[4]

    [4] UK Home Office 2016 Country Information and Guidance Pakistan: Women Fearing Gender Based Harm/ Violence February at p 22–23.

31. In light of the applicant’s evidence as to her father’s treatment of her and other female family members, the country  information referred to above and the information provided by [Court 1], I make the following findings:

    ·the applicant’s father is a conservative and authoritarian man who forbade her from continuing her studies after she completed her [school grade] in Pakistan in 2013, and arranged her marriage to a much older man;

    ·in order that the applicant escape the marriage and continue her education, her brother, who was already studying in Australia, assisted her to find an education agent who obtained a student visa allowing her to travel to Australia while the applicant’s mother sold her [specified assets] to pay for the airfare;

    ·on or about [a date in] February 2014 the applicant’s father discovered she had obtained a passport and beat her, confiscating her passport;

    ·her [Relative A] intervened to stop the beating and her mother took her to hospital where she was treated for pain and bruising;

    ·the applicant attempted to obtain a police report from the [police station] but they initially refused to take her report and later wrote a report but refused to act on it;

    ·she commenced legal proceedings against her father in [Court 1] on [a date in] February 2014 and attended court for the first time [later in] February 2014 when the matter was set down for a final hearing [days later in] February 2014;

    ·on [a date in] February 2014 her father returned her passport to her at the court hearing at the insistence of her [Relative A];

    ·after the court hearing [in] February 2014 her father tried to force her into his car and threatened to kill her if she tried to leave the country, but she was able to escape after people approached when she screamed;

    ·The applicant departed Pakistan on [a date in] February 2014 and arrived in Australia [the following day] where she has remained since.

    Risk of future harm from the applicant’s father

1. In light of the above findings, I accept the applicant has in the past been subjected to serious harm from her father because she has challenged his authority and refused to enter into an arranged marriage as social convention in Pakistan would dictate. 

2. It is widely accepted that in the absence of a major change of circumstances that makes prospective persecution unlikely, past persecution is an excellent indicator of whether there is a well-founded fear in the future.[5]  Considering the seriousness of the conduct of the applicant’s father towards the applicant in the past and the country information cited above about the situation for women in Pakistan, I accept there to be a real chance she will again be subjected to serious harm from her father if she returns to [Town 1], now or in the foreseeable future. 

   Availability of state protection

   [5] Hathaway, J Law of Refugee Status Butterworths, Toronto, 1991, p 88.

3. In this case, the harm feared by the applicant will be perpetrated upon her by her father who is a non-state agent. Harm from non-state agents may amount to persecution if:

   ·    the motivation of the non-state actor is Convention[6] related, and the State is unable to provide adequate protection against the harm; or

   ·    the motivation of the non-state actor is not Convention related, but state protection from the feared harm will be discriminatorily withheld for a  Convention reason.[7]

   [6] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   [7] MIMA v Khawar (2002) 210 CLR 1.

4. In assessing whether the motivation of her father is Convention related, I consider that the group of ‘Pakistani women acting outside of social marriage conventions’ is identifiable by the characteristic that all of its members are women in Pakistan who have acted outside of the Pakistani community’s social conventions surrounding marriage.  In the present case this has occurred because the applicant has refused to enter into a marriage arranged by her father, but country information indicates that such a social group may also include Pakistani women who refuse to pursue divorces, women who have sexual relationships outside of marriage and women who in a myriad of other ways are perceived through their sexual or marriage related behaviour to have brought dishonour onto their father, husband or wider families.  The common characteristic or attribute is not a shared fear of persecution. 

5. I consider that such women occupy a distinct position in Pakistani society by reason of their nationality, gender and their behaviour. I accept that Pakistani women acting outside of social marriage conventions possess a characteristic which distinguishes them from society at large and the Tribunal is satisfied that the applicant is a member of this group.

   State protection

6. I note DFAT’s advice that state protection in Pakistan is limited by resources shortages, personal socio-economic status and in some cases, political will. There is a widespread perception across the community of high levels of police corruption.[8]

   [8] DFAT 2017 DFAT Country Information Report: Pakistan 1 September, p 36.

7. The UK Home Officer reports that women who try to report domestic abuse face serious challenges and police and judges are sometimes unwilling to take action in domestic violence cases, viewing them as family problems.  It reports authorities usually return abused women to their abusive family members and repeat offenders are mostly admonished and counselled before the woman complainant is sent back home to or with the offender.  Mediation is reported to be the method of choice by police officers settling domestic disputes in cities in Pakistan.[9]  I accept that if the applicant returns to Pakistan and seeks protection from the authorities from her father, those authorities are likely to return her to him where she may again be subjected to harm.

   [9] UK Home Office 2016 Country Information and Guidance Pakistan: Women Fearing Gender Based Harm/ Violence February at p 33–34.

8. In the above circumstances, I accept that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the applicant faces a real chance of persecution for reasons of her membership of a particular social group if she returns to her home in [Town 1], Pakistan, now or in the reasonably foreseeable future.

   Relocation

9. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.

10. The applicant is [an age] year old woman from [Town 1], Pakistan.  I accept that prior to coming to Australia four years ago, aged [age], she had lived only at her family home in [Town 1].  I accept she has been seriously harmed by her father in the past and there is a real chance that he will seek to harm her should she return to [Town 1] in the foreseeable future.  I accept the applicant has occasional phone contact with her mother, but her mother is also a victim of the father’s violence and is unable to protect or practically support the applicant.  I accept the applicant has no ongoing contact with any other member of her family, including her brother in Australia from whom she is estranged.  I accept if she returns to Pakistan, she will do so as a young woman without family support or male protection.

11. I accept the applicant has secondary education but little work experience, and has not completed her studies in Australia, being unable to finance her studies in Australia after her arrival. At hearing she told me that in [Town 1] she had never been allowed to leave the family home alone, rather she was always accompanied by her brother or father even when travelling to and from school.  DFAT reports that women in Pakistan tend to live in segregation from men and face significant restrictions on their activities, with women in many parts of the country prevented from having contact with men aside from their relatives.  Violence against women is highly prevalent throughout Pakistan and DFAT assesses women in general face a high risk of domestic and societal violence and discrimination because of their gender.[10]

    [10] DFAT 2017, DFAT Country Information Report: Pakistan, 1 September 2017.

12. The applicant is educated but has little work experience.  The medical evidence before me indicates she has been suffering severe depression since her arrival in 2014.  At the time of the hearing before me, the applicant was unrepresented and living on payments from a charity.  She described symptoms of severe mental illness and [related symptoms] and a letter from her GP confirms she is being treated for depression.

13. In the particular circumstances of the applicant, I accept that relocation within Pakistan is not reasonable. 

    CONCLUSIONS

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

    DECISION

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

    Alison Murphy
    Member

    
    

    Attachment A

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

    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.

    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’).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether she is 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 of such a person.