1707565 (Refugee)

[2017] AATA 1966

1707565 (Refugee) [2017] AATA 1966 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707565

COUNTRIES OF REFERENCE:               Pakistan (first-named applicant)

Malaysia (second- and third-named applicants)

MEMBER:James Silva

DATE:4 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 04 October 2017 at 4:43pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Malaysia –Federal Circuit Court remittal – Jirga agreement – Child betrothal – Ethnic Pashtun – Marriage to a Malaysian woman – Family conflict – Credibility concerns – Second-named and third-named applicant offshore – No longer need protection in Australia

LEGISLATION

Migration Act 1958, ss 36, 65, 424A, 438
Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP (2016) FCA 1081
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 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. The applicants are a man from Pakistan in his [age] (‘the applicant’), a woman from Malaysia in her [age] (‘the second-named applicant)’, and the woman’s [age] year old son from a previous marriage (‘the third-named applicant’).[1] The first- and second-named applicants are married.

   [1] The Tribunal refers to the applicant husband as ‘the applicant’ for ease of reference, as the other two applicants are outside Australia and do not satisfy the requirements for the grant of Protection visas. It notes that, in their protection visa applications, the delegate’s decision record, the first Tribunal’s decision and in the review application, the applicant wife was referred to as the ‘first applicant’ (or equivalent), and the applicant husband as the ‘second applicant’.

2. The applicant first arrived in Australia in September 2012 on a [Temporary 1] visa, and stayed for over three months. He most recently returned to Australia [in] January 2013, as the holder of a [Temporary 2] visa.

3. The second-named applicant first visited Australia in October 1995, and departed on eleven occasions. Her most recent arrival was [in] May 2013, as the holder of a [Temporary 2] visa. The third-named applicant first arrived in Australia in September 2012, and accompanied his mother on two trips to Malaysia, also returning to Australia [in] May 2013. The second- and third-named applicant left Australia [in] April 2014.

4. The applicants applied for Protection (Class XA) visas [in] September 2013. The first- and second-named applicants attended an interview with a delegate of the Minister for Immigration [in] March 2014.

5. [In] March 2014, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act). This is an application for review of that decision, lodged on 4 April 2014.

6. On 27 October 2014, the Tribunal (differently constituted) affirmed the decision not to grant the applicants Protection visas. The applicants sought judicial review of the Tribunal’s decision. [In] May 2016, the Federal Circuit Court issued court orders, by consent, requiring the Tribunal to reconsider the matter according to law, on the basis that the first Tribunal had failed to consider an integer of the applicant’s claim. The matter is now before the Tribunal, pursuant to the order of the Federal Circuit Court.

7. The applicant attended a hearing before the current Tribunal on 26 September 2017. 

8. The Tribunal affirms the decision not to grant the applicant a Protection visa. In brief, the applicant claims that he and a female relative were forcibly engaged as children, pursuant to tribal custom, and her relatives will harm or kill him because he refused to comply, and married a Malaysian woman instead. The Tribunal notes that there is country information to support these claims, but finds that the applicant’s account of his own experiences is not truthful. It finds he is not at risk of persecution or significant harm in his home area for any reason. Furthermore, it finds that if he is worried about disapproval from his family or others, due to his marriage to a Malaysian woman, he can safely and reasonably relocate to another part of Pakistan. The second- and third-named applicants do not meet the requirements for a protection visa, as they are non-citizens currently outside Australia. The Tribunal’s full reasons follow.

   CRITERIA FOR A PROTECTION VISA

9. The issue in this case is whether one or both of the first- or second-named applicants meets the refugee criterion, and if not, whether either or both is entitled to complementary protection. The relevant law is in Attachment A.

   CLAIMS AND EVIDENCE

   Claims

10. The applicant claims to be a member of the Pathan tribe. In accordance with tradition, when he was young his parents arranged for his engagement to the daughter of a local family (his fiancée), with the expectation that they would marry when they were old enough. In his late teens, his parents put increasing pressure on him to marry. In 2008, he went to [Malaysia]. He fell in love with the second-named applicant there. The applicant returned to Pakistan once. His family was unhappy, and his fiancée’s family was angry. Her brother assaulted the applicant and held his passport, returning it to him only after he promised to marry the fiancée on his next visit to Pakistan. He has never returned. He fears that his fiancée’s family will exact revenge on his return to Pakistan, perhaps through an ‘honour killing’ or other harm, or arranging for the Taliban to harm him.

11. The applicant also presented claims against Malaysia, claiming that his wife’s brother and her ex-husband will target him there.

12. The second-named applicant initially claimed that she married the applicant against the wishes of his and her families. She was in business with her brother, who demanded that she divorce the applicant or he would harm both of them. Also, her first husband (the third-named applicant’s father) is a member of a criminal gang, who resented the son’s attachment to the applicant. He threatened to kill the two adult applicants. The second-named applicant also expressed fear that her ex-husband would kidnap their son (the third-named applicant).

    Background

13. The applicant is a [age] year old man from [a town], Rawalpindi, Punjab State. He is an ethnic Pashtun, and a speaker of Urdu and English. At hearing, he advised the Tribunal that his first language is in fact Pashto.

14. The applicant lived at one address in Rawalpindi from at least 2003 until early 2008, when he moved to [Malaysia]. He attended high school up to [year], and then worked as [an occupation] of a [store] [in] Rawalpindi. From February 2008, he worked as [an occupation] in Kuala Lumpur.

15. The applicant married [in ] July 2011, in Malaysia.

16. The second-named applicant is a [age] year old woman from Selangor, Malaysia. She studied until [year]. She [held a certain position] of an [agency] in Kuala Lumpur from April 2008 until April 2011. Her first marriage was to a [person from certain country], who she claims was a member of a criminal gang. The third-named applicant is the child of that relationship.

17. The applicant has held a number of Pakistan passports. The most recent ones were issued in the Pakistan Embassy in [Country 1] ([2012], valid for one year), and at the Consulate-General in [Australia] ([2013], valid for two years). He lived in Malaysia from January 2008 to October 2012, and he indicates that he undertook travel to [Country 1] [and four other countries]. The applicant adults told the Department delegate that they visited [Country 1] and [other countries].

18. The second- and third-named applicants returned to Malaysia [in] April 2014, and have not returned to Australia.

    Evidence

19. The evidence before the Tribunal includes the following relevant material: -

    §The applicants’ protection visa application forms, lodged [in] September 2013. These included completed forms for each applicant, brief statements of claims for the first- and second-named applicants, and copies of all pages of their passports.

    §The applicant attended a protection visa interview (‘Department interview’) [in] March 2014 (neither the second- nor third-named applicants were present). A copy of the interview recording is on the Department file.

    §The protection visa decision record (‘delegate’s decision’) of [March] 2014, a copy of which the applicants attached to their review application form.

    §The applications for review, lodged on 4 April 2014.

    §The Tribunal wrote to the applicants pursuant to s.424A on 23 September 2014, inviting comments or responses in writing to information that the second- and third-named applicants had left Australia, and therefore appeared not to meet the requirements for the grant of protection visas. In reply, their representative confirmed their departure, and stated that the second-named applicant ‘no longer needs protection from Australia’.

    §The applicant attended a hearing before the first Tribunal on 19 September 2014. The applicant presented a transcript of this hearing to the current Tribunal, at the hearing held on 26 September 2017.

    §The first Tribunal’s decision of 27 October 2014 is on file, as are associated notes concerning the litigation of that matter.

    §On 31 July 2017, the applicant confirmed by email that the second- and third-named applicants remain outside Australia, and that he wishes to continue his application for review as a single applicant.

20. The applicant attended a hearing before the current Tribunal on 26 September 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant is unrepresented in this matter. A Tribunal officer attended the hearing as an observer, with the applicant’s consent. At the hearing, the applicant again confirmed that the second- and third-named applicants remain in Malaysia, and that he remains formally married to his Malaysian wife.

21. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information on folios 168-171 of the Department [file] was subject to paragraph 438(1)(a) of the Act. It stated that disclosure of the information would be contrary to the public interest, because it contains information ‘relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. Furthermore, the folios contain printouts of the Department’s movement checks in relation to the three applicants. The Tribunal finds that this information is not relevant to the substance of this decision. The Tribunal advised the applicant at the hearing, and he noted this without comment.

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

22. The Tribunal has had regard to a range of country information which formed the basis for discussion at the hearing (see below for details).

    Country of reference / receiving country

23. The applicant claims to be a national of Pakistan: he has presented his Pakistani passport and associated documents; he speaks Urdu and is familiar with that country; and he has made claims against Pakistan. The Tribunal is satisfied that Pakistan is the applicant’s country of reference for the purpose of assessing his claims to be a refugee, and the receiving country for the purpose of assessing his eligibility for complementary protection.

24. The applicant also articulated protection claims against Malaysia, but there is no suggestion that he has the nationality of that country.

25. The second- and third-named applicants are Malaysian citizens.  

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    The second- and third-named applicants

26. The second- and third-named applicants left Australia [in] April 2014. The first-named applicant, who also acts as the authorised recipient for all three applicants, confirmed most recently on 31 July 2017 that they remain outside Australia, and that he wishes to proceed with the review application on his own.

    The first-named applicant

27. The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.  

28. The focus of this decision is the first-named applicant’s claims, given that the second-named applicant has returned to Malaysia and states that she now has no need of protection, and given that the third-named applicant presented no claims of his own. The Tribunal has carefully examined the claims and evidence that the second-named applicant gave, insofar as these might be relevant to an assessment of the applicant’s current claims.

29. The Department delegate considered the adult applicants’ evidence to be honest, and accepted ‘that [they] have difficulties due to their marriage, for the purpose of this assessment’. There were no specific findings of fact. The first Tribunal similarly formed a favourable view of the applicant’s credibility, and accepted his claims about his past experiences in Pakistan (though the member did not share his views about the extent of the dangers he faces throughout the country, and his prospects for a safe and reasonable relocation). In both instances, the decisions turned on the applicant’s ability to relocate within Pakistan.

30. The current Tribunal has before it country information about the prevalence of honour crimes in Pakistan. At the hearing, it discussed in some detail the substance of the applicant’s claims, exploring with him issues such as whether his and his fiancée’s families practiced child engagement in relation to other family members, the circumstances that allowed him to travel to Malaysia twice despite unfulfilled marriage obligations, his experiences on his return trip to Pakistan in 2010, and his prospective fears if he returns there. The Tribunal found the applicant’s evidence about these issues problematic. Cumulatively, they give rise to serious credibility concerns, which the Tribunal addresses below.  

    Forced engagement in Pakistan

31. The applicant claims that, in keeping with the tradition of the Pashtun (Pathan) tribe, his family arranged his engagement to the daughter of a local family when he was still young. The expectation was that the young couple will marry once they are old enough. Towards the end of the hearing, the applicant stated that his mother told him that [his fiancée] still lives in their local area and, in keeping with custom, will never marry another man.

32. The applicant said that his fiancée’s name is [name]. She is his first cousin, the daughter of his mother’s sister. [His fiancée] has [number] brothers and [number] sisters. Her father [works in certain industry], and the applicant said some of [his fiancée]’s brother’s also [work in the same industry], for instance in Lahore. The applicant said he has the impression that the family’s business is doing well, based on what his family has told him in the past.

33. The applicant described his own family, by comparison, as merely a ‘normal’ family.    

34. The Tribunal has found several references to ‘child betrothal’ as a traditional Pashtun/Pathan practice in parts of Pakistan, also known as vani. For instance, a BBC article from December 2005 refers to a case where three sisters from Punjab were betrothed by family members in an effort to resolve a blood dispute.[3] Other articles refer to Pashtuns traditionally preferring marriages between blood relatives, or at least within a tribe or sub-tribe, and betrothals sometimes being contracted in childhood.[4]

    [3] BBC Online, Forced child marriage tests Pakistan law, 5 December 2005:

    [4] Pashtun Culture and History: Azim Afridi, Pashtun Customs regarding birth, marriage and death,

35. At hearing, the Tribunal tried to gauge the prevalence of this practice within the applicant’s own family and that of his fiancée, by asking if other siblings (his and hers) had been subject to child betrothals or similar arrangements.

    §  The applicant told the Tribunal that he was the only one of his siblings to have become engaged in this way. He replied that his and his fiancee’s family settled on their future marriage because they were only two years apart.

    §  Asked whether there had been any discussion of his sister being betrothed to one of [his fiancée]’s brothers (as there were [a number] of them), the applicant replied that his mother had proposed that. The young men had responded that they were not yet ready, and were not prepared to enter into a promise that they might not keep. It appeared from the applicant’s response that the young men were consulted, and not subject to child betrothal.

    §  Asked whether any of [his fiancée]’s siblings had been subject to child betrothal, the applicant said that [a number] of them had been, and all are now married. It was not apparent from his answer whether the applicant meant that they were all subject specifically to child betrothals, or other forms of arranged marriage.

36. The applicant has consistently claimed that he was subject to such an arrangement, but the Tribunal considers the supporting evidence for this to be weak and inconclusive.

    The applicant’s travel to Malaysia

37. The applicant went to Malaysia in 2008, at the age of about [age], [details deleted]. [His fiancée] was all ready to marry at that time, but it was agreed that they would put the wedding off until the applicant returned to Pakistan.

38. The applicant went back to Pakistan in 2010. In his statement of claims, he wrote (in paragraph 14) that he married his Malaysian wife, and that when he went to Pakistan (see paragraph 16), he faced problems. He did not indicate in his protection visa application exactly when he returned to Pakistan, but the statement of claims suggests that it was after his Malaysian wedding. At both Tribunal hearings, the applicant clarified that he returned to Pakistan in 2010, still unmarried (and now aged about [age]), and that he got married in Malaysia the following year.

39. The applicant told the Tribunal that, on his return to Pakistan, ‘they’ ([his fiancée]’s family, and in particular her older brother [Mr A]) said they were going to force him to marry her. The applicant said that, a week after his arrival, wedding preparations were already underway.

40. [Mr A] came to the applicant’s room, furious, and grabbed his passport to prevent his return to Malaysia. As for how he managed to get it back (and travel to Malaysia without actually marrying), the applicant said that a friend went to [Mr A]’s office and retrieved it. The applicant did not have details on how his friend managed to do that.

41. The applicant said that he waited another month before returning to Malaysia. Asked why he delayed returning, as they might have noticed that the passport was no longer in [Mr A]’s office, the applicant changed his evidence and said that he went back to Malaysia within a week. He clarified that he had been back in Pakistan for a total of about nine or ten days. Asked about any other incidents during his visit, he said that [his fiancée]’s family did not listen to him, and he realised that they would have harmed him had he not managed to get his passport and flee.

42. The Tribunal read to the applicant the following excerpt from his statement of claims:

    When I went to Pakistan to see my family, this brother and his gang met me and threatened to kill me. They pushed me and bashed me on the road, used abusive language and humiliated me for bringing discredit to the tribe. The whole village is on their side as they feel I abandoned my tribe and brought disrepute to it.

1. Asked to comment on the apparent discrepancy between his written and oral evidence, the applicant said that he had a serious problem with [Mr A], and knew what would happen if he stayed around. As for his explicit mention in the statement of a physical encounter, he briefly commented that the Tribunal had not asked him about that.

2. The Tribunal has significant concerns about the applicant’s account of his experiences during his return trip to Pakistan. It notes that that statement of claims appears to have been drafted hastily, and it draws no adverse inferences from confusion as to the chronology of events. However, the inconsistencies as to what happened in Pakistan are, in the Tribunal’s view, significant, and cast doubt over the truthfulness of these claims. There are other aspects of the applicant’s account – for instance, how [Mr A]  managed to seize his passport, with a view to preventing the applicant’s return to Malaysia, and how the applicant’s friend managed to find and retrieve it without [Mr A] discovering it – that are problematic. They add to the Tribunal’s credibility concerns as a whole.  

   Marriage in Malaysia

3. In Malaysia, the applicant met and fell in love with the second-named applicant, who lived close to his place of work in Kuala Lumpur. The couple married in July 2011.

4. According to his evidence to the first and current Tribunals, the applicant told his parents about the marriage only afterwards.

   §  The applicant’s immediate family protested the marriage, as the second-named applicant is older than him and had a child from her previous relationship.

   §  His fiancée’s family were also upset. They regarded the applicant’s failure to marry his fiancée as the equivalent of divorce. His fiancée’s brother, who is a member of a criminal gang and has served time in prison [already] was particularly angry. Members of her family came to the applicant’s parents’ home, and his father had to seek the intervention of people. He promised to bring the applicant to his fiancée’s family home as soon as he returned to Pakistan.

5. Once again, the statement of claims conveys a slightly different impression. It states: ‘Against strong protests from my family, I married my current wife […]. In the meantime, my fiancée’s family in Pakistan was fuming over this marriage.’ The suggestion here is, at least in relation to the applicant’s own family, that they had some knowledge of the pending marriage, and protested against it prior.

6. At hearing, the applicant said that he told his family about the marriage only some three years after it took place (i.e. in around 2014). However, his family had already learned about it from some people they knew in Malaysia.

7. As for [his fiancée]’s family, the applicant said that his relatives informed them (in other words, some time after 2014).

   Opposition to the relationship and threats

8. The applicant adults claimed that it was after their marriage in July 2011 that they started to fear for their safety (in Pakistan and Malaysia).

9. As noted above, in his original statement of claims, the applicant suggested that [his fiancée]’s brother and his gang assaulted him because of the marriage and its impact on the reputation of the tribe. In light of the applicant’s evidence at hearing, the Tribunal finds that [his fiancée]’s brother and his gang did not assault the applicant in Pakistan (although the Tribunal’s credibility concerns extend beyond that point).

10. In relation to the threats and opposition that he received following the marriage (and his and [his fiancée]’s families’ discovery of it years later), the applicant has presented the following claims:

    §  [His fiancée]’s family have sent messages to him through family friends and relatives in Malaysia, indicating their displeasure. These have not been actual threats. He has received no communications, direct or indirect, since arriving in Australia.

    §  Meanwhile, in Pakistan, they confronted his family and said that he had deceived them. They started ‘torturing’ his family, which included beating his father many times.

    -   The applicant said that, although his father is still working, his ‘mind is not working properly’ and he has some problems walking. The doctor advised that this is partly due to his age, and also the result of the assaults he has endured.

    -   The applicant said that they also ‘tortured’ his mother. Asked for details, he said that she is now old and sick, and they beat her. She has a gap in her backbone, and neck problems. He added that the family cannot lodge a complaint against [his fiancée]’s relatives.

    -   The applicant said that they also beat his brothers and sisters on different occasions, all because of the applicant’s marriage in Malaysia. By way of example, he said that they beat his brother and almost killed him some two or three years ago. Asked whether they still had opportunities to do so, the applicant replied that they also attacked his younger brother.

    §  The applicant said that his mother suggested that his father go to the police, but he decided not to do so, as [his fiancée]’s family have political connections to the police. As for members of his father’s family (since it is the applicant’s maternal relatives who are causing the problems), the applicant said that they have said that they cannot help.

    §  The applicant said that in a bid to ensure his family’s safety (in particular, his older brothers), the applicant’s father went to the tribal council (jirga). This happened about two years ago. In an effort to resolve the issue, his father offered for another brother to marry [his fiancée], but her family refused. They insisted that the applicant go through with the marriage. The applicant’s father promised to hand the applicant over to [his fiancée]’s family on his return to Pakistan. The applicant impressed on the Tribunal that they had now set a ‘trap’ for him, and they would surely kill him on his return to Pakistan.

    §  The Tribunal queried whether, if the applicant’s father and other family members are subject to harassment, they had considered living in another part of Pakistan, such as Lahore. The applicant replied that the jirga appears to settled matters for them, for the time being – the real problem will be for his own safety, if he returns.

    §  The applicant’s father expressed his dissatisfaction that the applicant has caused them so much trouble, and he now refuses to support the applicant. His mother’s extended family have now ostracised the applicant’s family, because of his conduct.

11. In order to gauge whether the applicant was seeking to exhaust all options to avoid returning to Pakistan (that is, other than his protection visa application), the Tribunal asked if he had thought of joining his wife in Malaysia. The applicant presented a number of claims in relation to Malaysia, which are not immediately relevant to this decision (as he is not a Malaysian national, and there is no information to suggest that he has a right to enter and reside there within the meaning of s.36(3) of the Act). Essentially, he claims that his wife’s first husband is a member of a criminal gang, and that her wider family are influential members of the government elite. In both cases, they have the motivation and means to harm him. They were (at the time of application) exerting pressure on the second-named applicant to leave the applicant.

12. The Tribunal asked about the couple’s previous co-habitation in Malaysia, which included return trips to [Country 1] and [other countries], with no apparent concern for their safety. The applicant replied that they managed to keep their marriage secret from the ex-husband, even though they lived together. Responding to the Tribunal’s surprise as to how they managed this, the applicant suggested that the ex-husband did not monitor her whereabouts, but that he had become jealous of the applicant’s father-like relationship with the son.

13. In assessing this case, the Tribunal has taken into account country information that honour crimes are prevalent in Pakistan, with both men and women targeted.[5] Impunity is considered a major issue, with reports indicating that police have ignored attacks and even colluded with attackers.[6]

    [5] Gauhar, N A 2014, Honour Crimes in Pakistan: Unveiling Reality and Perception, 31 March, Community Appraisal & Motivation Program, p.24 Ryan, K 2014, ‘Pakistan’s Woeful Record on ‘Honor Killings’’, The Diplomat, 9 July >

    In January 2013, the Immigration and Refugee Board of Canada provided the following information, based on a variety of open sources, on the targeting of men on account of honour:

    According to a representative of HRCP, 70 percent of the victims of honour killings are women, while 30 percent are men (qtd. in The Atlantic 28 Sept. 2011). A senior police officer told DW that in 2011 in Sindh Province, 73 women and 30 men were victims of honour killings (DW 20 Mar. 2012). Sources indicate that, in many cases, males who had “illicit” relationships are able to flee (US 24 May 2012, 44; DW 20 Mar. 2012). In some cases, males who were in illicit relationships have the option of negotiation, including paying the family of the victim with cash (ibid.; US 24 May 2012, 44) or with a woman-in-marriage from his own clan (DW 20 Mar. 2012). The Aurat Foundation indicates that jirgas in Balochistan sometimes let males live in exchange for "heavy amounts” of money as compensation ([July 2012], 1-2).[7]

    [7] Gauhar, N A 2014, Honour Crimes in Pakistan: Unveiling Reality and Perception, 31 March, Community Appraisal & Motivation Program, p.24

14. While this country information tends to support the applicant’s claims, the Tribunal has numerous concerns about his specific circumstances, and the evidence provided in relation to his claims. These include, most significantly:

    a)    despite the applicant’s consistent claims about the child betrothal, and country information that this and similar customs persist in some Pashtun communities, the applicant’s claims and evidence lack context and detail that his family or [his fiancée]’s actually practice this;

    b)    the applicant’s travel to and residence in Malaysia, and his return to Pakistan (without significant incident), unmarried and at the ages of [age], add to doubts that his community practices such marriage traditions;

    c)    his account of his experiences on his return to Pakistan in 2010 was in part inconsistent (regarding whether there was an assault), in part lacking in reasonable detail (such as the seizure and later recovery of his passport), and also changeable (as for the duration of his stay there);

    d)    the applicant’s account of [his fiancée]’s family’s reaction firstly suggests that they have not tried to locate or harm him, apart from sending signs of their displeasure to him in Malaysia, and, second, his account of their pursuit of his family, through assaults and social isolation, appeared to be improvised and, at least in part, drawing on ailments that his parents have that are not obviously linked at all to physical assaults;

    e)    the Tribunal found the applicant’s account of the jirga lacking in detail, context and supporting evidence, leading to concerns that this is a recent claim intended to resolve weaknesses in his case; and

    f)     throughout, the applicant has pressed his case for protection in Australia, but shown little genuine interest in exhausting other options, such as possible relocation for family members in Pakistan (or eventually, for  himself, see below), or considering his options in Malaysia. 

    Findings of fact

15. In light of all the above concerns, the Tribunal finds that the applicant was not subject to a child betrothal that he refused to comply with; that his fiancée’s family did not confront, threaten or assault him on his return to Pakistan in 2010, or seize his passport (until he managed to retrieve it); that he was not subject to further enquiries or threats whilst in Malaysia; that his family have not been subject to assaults, threats or ostracism because of his refusal to marry [his fiancée]; and that there was no jirga decision by which his father must hand him over on his return to Pakistan, to be harmed or killed by [his fiancée]’s family.

16. The Tribunal accepts that the applicant’s family may have voiced disapproval of his marriage to the second-named applicant in 2011, whether they learned of this through family connections in Malaysia or through the applicant directly some years later. The Tribunal accepts that they may have reservations about her Malay background (ethnicity and culture), the age difference with the applicant (she is somewhat older), and her previous marriage and child. The applicant has not claimed, and there is nothing before the Tribunal to indicate, that his family or others in Pakistan have threatened him due to any concerns about this marriage.

17. The Tribunal accepts that the applicant remains married to the second-named applicant, in particular because he has a strong bond with her son, and as he wants to keep open their options as a couple. However, on the limited available information, the Tribunal is unable to reach any firm conclusions as to the current status of the relationship or their future conduct (in Malaysia or Pakistan).   

    Assessment: Refugee criterion

18. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Pakistan, and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

19. Given its assessment and findings of fact above, the Tribunal does not accept that there is a real chance of the applicant facing serious harm amounting to persecution from [his fiancée]’s family members – including any brother who has spent time in [prison] – on account of his failure to marry [his fiancée] . It also does not accept that there is a real chance of any other form of harm: ostracism or pressure from his and [his fiancée]’s family, from members of his tribe or participants in the jirga, or the Pashtun community more generally; criticism or lack of support from family members; or pressure from anyone to divorce or otherwise not associate with his Malaysian wife (although the evidence suggests strongly that they have now permanently separated anyway). The Tribunal finds that there has been no jirga agreement that the applicant’s father must hand him over to [his fiancée]’s family or others on his return to Pakistan, and there is no related risk that they will harm or kill him for his refusal to marry [his fiancée].

20. Having found that there is no real chance of the applicant being subject to harm from [his fiancée]’s family, his own family or other community members which, individually or cumulatively, involves serious harm amounting to persecution, it is unnecessary for the Tribunal to determine other legal issues. These are: (a) whether the State authorities would provide the applicant with an adequate level of protection such that there is no longer a real chance of persecutory harm; (b) whether the claimed harm is Convention-related, (c) or whether (if the Tribunal had concluded that the applicant is at risk of serious harm from non-State for a non-Convention reason) the State would withhold protection from him in a discriminatory manner, based on one or more of the Convention grounds.

21. The Tribunal accepts as plausible that some family members disapprove of the applicant’s marriage to the second-named applicant. However, the applicant has not claimed, and there is nothing to indicate that he fears Convention-related persecution on this basis.

    Relocation

22. As noted above, the Department delegate and the first Tribunal focused in their decisions on the issue of relocation, and the Federal Circuit Court remitted this matter to the Tribunal for reconsideration due to the first Tribunal’s assessment of that issue. In light of the above findings of fact and the Tribunal’s conclusion that the applicant does not have a well-founded fear of Convention-related persecution in his home area of Rawalpindi, it is not required to determine whether it would be reasonable for the applicant to relocate to another part of Pakistan where he does not have a well-founded fear of Convention-related persecution.

23. Nonetheless, for the sake of completeness, and to address any concerns that the applicant might have about his family’s (including his maternal [relatives]) or his community’s disapproval of his marriage to the second-named applicant, the Tribunal proceeds to address this issue.

24. As discussed at the hearing, the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

25. In the present case, the applicant claimed that relocation is neither safe nor reasonable because [his fiancée]’s family (in other words, his maternal relatives) are powerful, have police connections, and could hunt him down and kill him anywhere; he implied that the jirga now has a vested interest in enforcing its agreement, that Pakistan is a dangerous place, and that he would be at added risk because he now has no family support.

26. In other words, the applicant maintains that he has a well-founded fear of Convention-related persecution throughout Pakistan, in particular because of [his fiancée]’s family’s power and influence, and implicitly because of the reach of the jirga’s authority. The Tribunal has examined these claims above, and not accepted them. Further supporting the Tribunal’s conclusion is that, while the applicant has said that [his fiancée]’s father and brothers conduct some [business] in Lahore, there is no suggestion that they have either business interests or influence throughout the country. By his own account, since his departure from Pakistan in 2010, they have at most only sent messages to him via third parties in Malaysia. Even to take the applicant’s claims at face value (which the Tribunal does not), it also does not accept that the applicant’s relatives (his own family or his maternal relatives), the jirga or others have either the motivation or resources to pursue him throughout Pakistan.

27. Recent country information discussed with the applicant indicates that internal relocation in Pakistan is permissible under the Constitution, and that internal migration is commonplace (in a variety of circumstances). As noted in a September 2017 report by the Department of Foreign Affairs and Trade[8]:

    Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. The country’s last census in 1998 showed the high level of internal migration; almost three million people lived in a different province to the one in which they had been born, √and nearly 11 million lived in a different district. DFAT understands that large-scale internal movements have continued since the census in 1998. Operations by security forces have forced many people to relocate in recent years, particularly in the FATA and Khyber Pakhtunkhwa. Credible sources in Pakistan told DFAT that the majority of these people have now been able to return to their homes, although in many cases their homes and fields had been destroyed in the security operations. DFAT understands that as of November 2016 around 600,000 people remained displaced as a result of security operations and natural disasters. A further 5,000 families are estimated to have been displaced from Pakistan to the Afghan city of Khost, near the Pakistan border.

    [8] Department of Foreign Affairs and Trade: DFAT Country Information Report - Pakistan, 1 September 2017  

1. Having regard to the reasonableness for the applicant of a future relocation, the Tribunal notes that the applicant has Urdu and English language skills, he has demonstrated flexibility and resourcefulness by living [in] both Malaysia and Australia, and there is no apparent reason why his wife and son, also Muslims, could not join him if they so wished. The applicant added his concern that there are many problems in Pakistan, including lack of security, and that he would not have an easy life. The Tribunal appreciates that Pakistan has a range of economic and security problems compared with Australia. However, it is not satisfied that, having regard to the applicant’s particular circumstances, these make it unreasonable for him to live in a part of that country other than Rawalpindi.    

2. The applicant emphasised that relocation is even more difficult for him as a Pashtun, because of rampant racism and prejudice. He claimed that his language and culture sets him apart from other Pakistanis, there are enhanced security procedures that encourage landlords to check on prospective tenants’ identity with local authorities and their families (something he does not want to have happen), and the readiness of people to blame Pashtuns for security incidents, on the presumption that they are ‘terrorists’.

3. The Tribunal accepts that the applicant is a Pashtun, and would be readily recognised as such in any part of Pakistan. As DFAT noted in its most recent report on Pakistan:

   There are approximately 30 million Pashtuns in Pakistan, which makes them the country’s second largest ethnic group. Many Pashtuns live with members of their own tribes and sub-tribes in Khyber Pakhtunkhwa and the FATA while others have migrated to urban areas. The largest Pashtun communities are in Karachi (with approximately seven million, it is Pakistan’s largest urban Pashtun population) and Khyber Pakhtunkhwa (approximately 22 million), which includes the province’s capital, Peshawar (approximately 3.5 million). There are also large numbers of Pashtuns in Balochistan, Islamabad, Lahore and other urban areas in Pakistan.

4. Country information discussed at the hearing indicates that the largest Pashtun community is in Karachi, and that Pashtuns are represented at all levels of society. The DFAT report cites instances of Pashtuns claiming that they are subject to discrimination, harassment and sometimes selective arrests on the suspicion of terrorist activities. However, the Tribunal is not satisfied that these reports indicate that the applicant has a well-founded fear of Convention-related persecution (as a Pashtun) in Pakistan, or that his Pashtun ethnicity (of itself, or when considered in light of his circumstances as a whole) make it unreasonable for him to relocate to a place in Pakistan other than Rawalpindi. In reaching these conclusions, the Tribunal has taken into account both the size of the Pashtun population, its representation through most of Pakistan and its strong presence in places such as Karachi. The Tribunal has also taken account of the applicant’s particular circumstances, including his prolonged absence outside of Pakistan.

5. In sum, the Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution in Rawalpindi, his home area. Even if he were nonetheless apprehensive about his (extended) family’s disapproval of his marriage to a Malaysian woman, or any other family-related matters, the Tribunal finds it would in all the circumstances be reasonable, in the sense of ‘practicable’, to expect him to relocate to another part of Pakistan where he did not face such a degree of family pressure (or other non-persecutory harm). 

6. The Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Pakistan. It is therefore not satisfied that he meets s.36(2)(a).

   Assessment: Complementary protection

7. The Tribunal has considered whether, on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

8. The Tribunal has rejected the applicant’s claims that family members (both maternal relatives, and members of his immediate family), other people associated with the jirga, or anyone else, intend to harm him if he returns to Pakistan. It finds no other factors – such as his Pashtun ethnicity, his marriage to a Malaysian woman, or any family conflict or disagreement on that or other matters – that put him at risk of significant harm.

9. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Pakistan.     

10. The applicant voiced concerns about Pakistan’s security situation and living conditions. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns relating to Pakistan’s general security situation and living conditions impact the population generally, rather than him personally.

11. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Assessment: Second- and third-named applicants

12. The second- and third-named applicants left Australia on 5 April 2014, and have not returned. Section 36(2) of the Act provides that a criterion for a Protection (Class XA) visa is that an applicant for the visa is a non-citizen in Australia. It follows that neither meets the requirements for the grant of protection visas.

13. It is therefore unnecessary for the Tribunal to further consider the advice received on 16 October 2014 that the second-named applicant ‘had a patch-up with her brother and she no longer needs Protection in Australia’, or the fact that the third-named applicant did not submit any protection claims of his own.

    CONCLUSION

14. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants protection visas.

    James Silva
    Member

    
    

    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 s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

    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.