1712801 (Refugee)

[2021] AATA 3078

1712801 (Refugee) [2021] AATA 3078 (3 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712801

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Meena Sripathy

DATE:3 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2021 at 1:27pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – interfaith marriage – love marriage – married against the wishes of their family – Sunni, Punjabi, and Arian caste – Shia, Saraiki and Rajput Bhatti caste – defiance of familial obligations – honour killings in Pakistan and Punjab in particular – credibility assessment – state protection – police capacity – criminalisation of honour crimes – condonation of honour crimes by police and local authorities – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 and Border Protection on 24 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Pakistan, applied for the visas on 13 September 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that either the first or second named applicants faced a real chance of serious harm for one of the specified reasons in s.5J(1) or that there were substantial grounds for believing they faced a real risk of significant harm if returned to Pakistan.

3. The first and second applicants appeared before the Tribunal in person on 9 and 29 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages for the second named applicant. The applicants were represented in relation to the review by their registered migration agent.

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

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she 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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

9. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicants are a [age] year old woman (applicant wife) and a [age] year old man (applicant husband) of Pakistan nationality and their [age] year old son, born in Australia. The applicants are both from Punjab province. The applicant wife claims to be of Punjabi ethnicity and Sunni religion. The applicant husband claims he is of Saraiki ethnicity and Shia religion.  They married [in] December 2014 in Bahawalpur, Punjab. The applicant wife has a mother, [number] sisters and [number] brothers residing in Bahawalpur, Punjab, Pakistan. The applicant husband has a mother, [number] sisters and [number] brothers, residing in Multan Punjab, Pakistan. She is educated to the tertiary level, indicating that she has completed [Qualification 1], [Qualification 2], [Qualification 3], [Qualification 4] and PhD Coursework in Pakistan and a [Qualification 5] and [Qualification 6] from [education provider] in Australia. She was employed from 2005 to 2011 in various teaching positions in schools and universities in Pakistan.  Her last position prior to coming to Australia was Head of Department in [Discipline 1] at [University 1]. The applicant husband completed his secondary education and IELTS preparation course in Pakistan and various [other] courses since coming to Australia in 2015.

12. The applicant wife and applicant husband provided Statutory Declarations dated 13 September 2016 setting out their background, history of their relationship and reasons they fear return to Pakistan. In summary, the applicant wife claims she is Sunni and from a feudal landowning family that is well off. Her paternal uncle was involved in politics as have been other family members over generations.  Her father was a lawyer and died of a heart attack in 1990. Since then her family was dependent on the paternal uncles. None of the women in the family worked outside the home after they became engaged. The applicant wife came to Australia [in] March 2011 on a student visa and has studied since that time. She returned to Pakistan for 8 weeks in December 2014 to marry.  The applicant husband joined her in Australia in June 2015. 

13. They first met in in November 2007 at the office of the applicant husband’s father who was a visiting professor of [Discipline 2] at [University 2]. The applicant wife visited his office for assistance with a [specified] procedure. The applicant husband helped her with a computer issue and they began a friendship from there. In 2009 they touched on the topic of marriage and realised they came from different sects and backgrounds.  In 2010 they decided to try and bring their families together by attending a marriage in the applicant wife’s family [in] December 2010. The applicant husband proposed to her that day. She accepted but told him he would have to wait at least 2 years as she had a scholarship to study in Australia from March 2011.

14. Their marriage was decided in October 2014.  At that time the applicant wife’s mother, brother and sister had met the applicant husband’s mother, brother and sister. This was the first her immediate family members came to know the applicant husband was Shia.  They decided not to tell the paternal uncles.  The nikah was conducted at the applicant wife’s home in the presence of their mothers’ and some siblings. Following the marriage the applicants’ described ways in which they faced pressure from family to convert to each other’s sect. Since the birth of their son, their non approved, inter sect marriage has been brought to the fore and the applicant wife is considered even more dishonourable or ‘kari’.  The applicants fear their respective families. They fear being killed or seriously harmed if they return to Pakistan.

15. The applicant wife claims members of her family would consider killing a Shia to be a good deed.  The applicant wife gave as an example the experience of a woman called [Ms A] who was the daughter of her uncle, who married against the family’s wishes and was eventually burned to death, and her brother was murdered. The applicant wife claims she cannot live anywhere else in Pakistan because their families can easily find them and the police would offer no protection because it is a private matter.

16. The applicant husband in his statement claims his family is strict conservative Shia and the women practice purdah and are totally covered. His uncle, [Uncle B] who supported his family after his father’s death, holds an important position as clerk in the [government] and is a devout Shia and active member of Imamia Student Organisation, a Shiite Islamic Organisation that preaches and strengthens the Shia sect. The applicant husband recounts the issues that the marriage had on his relationships in his family.  He claims his father, uncle and community are against the marriage because she is Sunni. He has been forbidden to speak to his sisters since 2015 by his brothers in law who are upset that he did not marry their sister. The pressure from his family increased since his wife’s pregnancy, and he is expected to register his son as Shia. The applicant husband gave an example of his uncle [Uncle B]’s daughter [Ms C] who married a neighbour’s son and various female relatives were killed as a result.  The applicant husband fears he will be killed or injured by his uncles if he returns to Pakistan. 

17. The applicants attended a Department interview on 28 April 2016.  The Tribunal has listened to an audio recording of the interview.

18. On 24 May 2017 the delegate refused the application, concluding that she was not satisfied there was a real chance the applicants will face serious harm for a specified reason if returned to Pakistan, or that there is a real risk they would face significant harm.

    Evidence before Tribunal

19. The Tribunal received a submission, supporting country information and documents on 4 March 2021. Included among these documents was the following evidence not presented previously to the Department:

    ·Medical certificates and receipts relating to a pregnancy termination procedure undertaken by the applicant wife [in] January 2017.

    ·Various psychiatrist notes and prescriptions relating to [Ms D] (applicant wife’s sister) in 2015, 2016 and 2020.

    ·Document purporting to be a request for police protection made by [Ms E] [in] July 2017 against ‘[Uncle B] and his sons’ who are forcing her to marry his son, [Mr F].

    ·Document purporting to be a complaint to police [in] March 2018 by [Ms E] that she was forcefully married to [Mr F] and then ‘tortured physically and mentally’ and later in 2018 divorced as punishment for being the sister of the applicant husband.   

20. On 8 March 2021, the following further documents were submitted in support:

    ·Chat records of an exchange between the applicant wife and a counsellor from [a mental health service] in May 2020

    ·Letter of an offer of admission for a Doctor [degree] at [University 3].

    ·Statement dated March 2021 from applicant husband’s mother, explaining the issues arising for the applicants and the family as a result of his marriage in 2014.

    Tribunal hearings 9 March 2021, resumed on 29 March 2021

21. At the hearings the applicant wife and husband gave evidence separately.  The applicant wife told the Tribunal she has been living at the same address in Australia since coming to Australia.  She shares a duplex with her husband and son, and another tenant. Another family lives in the adjoining property.  She is currently working as a casual [Occupation 1] for a company and also has a small business operation from home. Her husband is working at [Company 1] and has been employed at various hospitality jobs. Their son started kindergarten at school this year.

22. The applicant wife gave the following evidence of her family composition in Pakistan.  She has a mother, [number] sisters and [number] brothers.  When she was in Pakistan, she lived with her mother and siblings.   She has numerous paternal uncles who lived in separate houses Bahawalpur, Sadiqabad, Rahimyarkhan and Karachi.  She came to Australia to study in 2011. She was initially enrolled in a [Qualification 7] program, but later changed to an [Qualification 6] program, which she completed in 2016.  Since then she has not studied.  She applied for, and was offered, enrolment in a [Discipline 1] doctorate program at [University 3] in 2018 but because of the fees requested due to her visa status she has not been able to commence. She would like to undertake a PhD program in this field in future. She also completed a [Qualification 5] to help her get employment here. 

23. She was sponsored for her student visa by the [Pakistani government] and also received assistance from her family and used her own savings. Once she arrived in Australia she supported herself through her education.  She has not studied since completing her [Qualification 6] in 2016, as her son was born that year.

24. She confirmed the following regarding her family in Pakistan: two of her sisters are married to cousins and live in or around Lahore.  One sister, [Ms G], is not married and does not want to marry.  This sister has completed a Masters [degree], and suffers mental health issues. The applicant wife has been in contact with this sister, most recently in 2020 when she gave her the documents supporting her health issues. Of her two brothers, one has completed an [Qualification 6] and is unmarried and lives with their mother.  The other was studying in [Country 1], and then worked in various countries.  He is married to [Ms H], their cousin, since he was very young.   The applicant wife told the Tribunal she has no contact with her mother, since she last spoke to her in 2016 when she told her about the birth of her son. In 2018, her sister informed her their mother was ill but she did not contact her.

25. The applicant wife told the Tribunal her husband has [number] sisters and [number] brothers.  Three of the sisters are married to their paternal cousins, one sister was forcibly married and divorced to a cousin in 2017-2018 – as punishment for the applicant husband’s actions in marrying outside of the family. The youngest sister is unmarried. The two brothers are married to the same paternal uncle’s daughters.

26. The applicant wife confirmed her and her husband’s education and employment history. The Tribunal noted her husband’s limited education compared to her own.  She said in his family education was not valued as they prioritised religious education. His father was educated but he was not supported to continue to obtain qualifications and therefore was unable to encourage or support his children to study. The applicant husband therefore tried to support his sisters’ to study prior to leaving Pakistan.  His youngest sister is still studying, but privately at home.

27. The applicant wife confirmed she is Sunni by religion, Punjabi by ethnicity and of the Arian caste.  Her husband is Shia, Saraiki and Rajput Bhatti caste.  She mentioned that caste matters more to her community than his.  When asked if she is religious or practised her religion in Pakistan, she said she did only to the extent that it was necessary within the family or workplace.  Since her son was born in Australia, neither she nor her husband practice their religion due to the pain and tension the issue has caused. The applicant husband never mentioned his religion to her until 2009, because in Pakistan it is not considered a good thing to be Shia so he was not forthcoming about that. 

28. The Tribunal asked the applicant wife about how she came to meet and marry her husband.  She said she was under a lot of pressure from her family to marry and was looking for a way to get out of it.  She met him when she was visiting Multan to do some research work.  She went to the office of his father, who was recommended to her for assistance with data analysis for her work.  The applicant husband was there and helped her with a computer issue. He asked her for her number, on the pretext of a friend wanting information to enrol at her university.  She gave it to him and he called her. They commenced contact over the next period, as friends.  After one to one and a half years, she felt more comfortable and trusting of him and raised the issue of taking the relationship further and marrying. This was in the context that there was increasing pressure on her to get married from her family that she was resisting.  She brought up the topic with him by telling him about her sisters’ getting married and the pressure being put on her because she is the eldest.  It was at this time that he told her for the first time that he was Shia and Saraiki and was already promised to his uncle’s daughter since a young age and for these reasons it would be impossible for them.  He became quite emotional and cried.  She felt very upset by this.  He told her to give him some time and he will try and work on his mother. After this he told his mother and sister and believes his mother told his father who said it would never be accepted by the family.  His father subsequently died suddenly. 

29. In 2010 they decided to test the waters of the family reaction by inviting him and his sisters to her sister’s wedding, as relatives of a former colleague.  They came but no one knew him as the person she wanted to marry. 

30. The applicant wife said they never discussed between them the topic of either converting to each other’s religion because it was clearly not acceptable to either. 

31. The applicant wife said while he told his mother and sisters in 2010 about her, she never mentioned him to her family until 2014.  She felt she was going overseas and this would give her more time to convince her relatives. In 2014, they commenced making arrangements for the marriage, and the plan was to get a nikah nama done and then he could come to Australia and perhaps over time and with the distance it would be accepted. Unfortunately they both underestimated their families and the situation. 

32. He managed to convince his mother, brother and sisters to allow him to marry under a Sunni ceremony and then she would convert and they could have a Shia nikah. He told his family that if they didn’t agree, they would go ahead anyway and have a court marriage. She told her family this also.  She never considered telling her family she would convert to Shia as it would be wholly unacceptable.

1. The applicant wife confirmed they had a nikah nama ceremony on 24 December, then a mehndi function on 26 December at which her mother, sisters and some neighbours attended, and a dinner on 27 December at which her uncles and cousins attended. The Tribunal noted that this indicates everyone knew then she married him and he is not from the family.  She agreed but said they were not happy about it and expressed their dissatisfaction. [In] December 2015 they went to Multan and had a function there, attended by his mother, all of his sisters and his brothers.  The husbands of his sisters and wife of his brother did not attend as they did not approve, since he did not marry the cousin he was promised to. The Tribunal queried, if they were not approving, why did he have this event. She said it was a tradition to have a lunch ceremony upon marrying.  The applicant wife pointed out that his family is even more traditional and rigid than hers, the women are covered completely and eat separately.

2. After the marriage, they lived together in Multan in rented accommodation until end of January 2015 when she returned to Australia. She did not return to Bahawalpur. She also did not go to his family home.  He returned to live with his family after she came back to Australia. She lodged a visa application for him for Australia and he came here in June 2016.

3. The Tribunal asked if anything happened to them or him in this period.  She said that until then his uncles did not know he had married a Sunni.  It was only after she left, her uncles sent an invitation to his uncles for a family member’s wedding during a Shia religious period. This led them to question the applicant husband.  He confronted his uncles and cousins and told them.  They were furious and beat him up.  After that they attempted on several occasions to call a panchayat to discuss the matter several times but the applicant husband kept avoiding it. The pressure was on him to bring her back and have her convert to Shia. 

4. The Tribunal asked if she converts would they accept it. She said they would not because it is not the end of the matter, he has still shamed the family by not marrying his cousin.  The Tribunal asked if this is their concern, why wouldn’t they have married him off to his cousin between January to June 2015 when he was there. She made no response to this.

5. When asked what other consequences there have been, she referred to the forcible marriage and divorce of [Ms E], as punishment for his actions.  The youngest sister is still unmarried. She confirmed the other three sisters remain married to their respective cousin brothers.

6. The Tribunal asked how things got worse since their son was born, as claimed. She said she received a call from her uncle after he was born demanding to know what she intended to do with the child. She hung up and was very distressed. She is afraid her family and his family will harm their child.  Neither accept him as legitimate. She fears they will harm them and their child. 

7. When asked why she believes this, the applicant wife referred to the example in her family of her mother’s cousin [Ms A] who was eventually killed for what she did against the family’s wishes. The Tribunal asked, if this example is true, how did she enter into her marriage without thinking of the consequences? She said she didn’t think it through properly at the time.  She thought she was coming to Australia and they had time and distance here.  Now she is even more afraid of his family than hers.

   Evidence from applicant husband

8. The applicant husband confirmed he is Shia and of Saraiki ethnicity.  He said his family are strict and active observers of the religion, they pray regularly and attend the Imambargah. They are involved in organising events for the 10^th day of Muharram processions and his relatives have always participated in these events. The women in his family are fully covered, including their hands with gloves.  He stated that in Pakistan he practised his religion regularly, praying 5 times a day and attending the Imambargah. When he came to Australia initially he attended an Imambargah but gradually he stopped going. 

9. Prior to coming to Australia he worked as a [Occupation 2], supplying [product] for [subject]. He travelled for work, covering a 700 kilometre region.  He confirmed his family composition in Pakistan comprises his mother, [number] brothers and [number] sisters.  [All] his brothers are married to daughters of his uncle [Uncle B], one recently.  He was engaged to the third daughter of this uncle, who to this day is unmarried. Three sisters were married long ago, to his uncle [Uncle I]’s sons.  One of his younger sisters was forcibly married to another cousin and then forcibly divorced, as punishment for his actions in marrying against the family’s wishes.  His youngest sister remains unmarried.

10. The Tribunal asked about his education.  He said in his faith, religious education is prioritised and so initially he studied at a madrassa. His father was interested in study but was never encouraged by his own father. He was studying a Masters level qualification but never finished it before he passed away.  He was a part time [Discipline 2] teacher, and later worked as a lecturer at the university but only as a visiting lecturer.

11. The applicant husband gave the following evidence about how he met his wife.  His father was working at the university and wasn’t feeling well so he came to bring him home from the office. The applicant wife was there and was having some issue installing a CD and he helped her.  He asked her for her number because he had a friend who was interested in enrolling at her university. They exchanged some messages and then called each other. Gradually over time the friendship developed more and they found themselves developing feelings for each other.  The Tribunal queried how and why he would do this given the disapproval of his family.  He agreed it was not with their approval but he was young and started to like her. When asked what he knew about her, he said he know she was a lecturer at [University 1].  They talked about various things they like and disliked but never discussed religion, because being a Shia was not a favourable thing in Pakistan and it was not something he would generally mention about himself.

12. It was not until around 2009 that they had a discussion about marriage.  She brought it up and this was the first time he told her that he was Shia and Saraiki.  He told her his family is very orthodox and there have been no marriages outside the family, faith and caste. He became emotional when he told her this.  He asked her to give him some time to find a way to talk to his family.  After this he mentioned to his mother and sister about meeting the applicant wife.  He understands his mother may have told his father, who indicated it would never be accepted in the family.  His father died suddenly in 2010 before he had any direct conversation with him.

13. By 2010 the applicant husband was doing well at work and feeling secure and financially contributing to his household.  He felt like he could assert himself a bit more in his family.  In 2011 the applicant wife went to Australia and they continued communicating with each other. In this period his mother knew but was not supportive of the idea. He spent this period between 2010 and 2014 trying to establish himself and support his family to shore up his position in the family. In 2014, he told his mother that he still wanted to marry this girl, and if she did not agree they would go ahead and have a court marriage.  This is now he got her agreement to meet the applicant wife’s family and agree to a marriage. He told his family that he will marry her and after that she would convert to Shia and they can have another marriage. These discussions were only with his mother and younger siblings.  He never discussed it with his paternal uncles, or married sisters or their husbands (his cousins).

14. The Tribunal asked if he ever discussed with the applicant wife her converting to his religion.  He said he would never consider that because it would never be accepted from her family’s side.  He only told his family she would convert to satisfy them but never intended for her to do so.  So on the basis of this promise he made, his mother, younger brother and unmarried sisters all came for the Nikah ceremony.  They supported him at this time, as they were not under the paternal uncle’s affiliation yet and his sisters also did not want to marry their cousins. His mother was however very worried about the reaction of the paternal uncle.

15. The nikah was conducted by a Sunni cleric.  He never told him nor did he ask about the applicant husband’s religion. He just assumed he was Sunni. After the nikah ceremony and other events in Bahawulpur they had a walima in Multan, attended by his mother, all of his sisters and brothers but not their respective husbands and wives, that is not the cousins.  The Tribunal asked why he had this event if the extended family did not know or were not supportive of the marriage.  He said he wanted to have a ceremony in his place and show that he had done it and to see what consequences there would be.   The applicant wife stayed with him after that for one month until she returned to Australia. He confirmed that this was without incident, but noted that he was working and she travelled with him because he would not otherwise be sure of her safety.

16. The applicant husband confirmed the first his paternal uncle knew about the marriage was after the applicant wife returned to Australia, when her relatives sent an invitation for a wedding to take place during a Shia religious period. 

    Documents provided to the Tribunal following the first hearing

17. On 24 and 29 March 2021, the Tribunal received the following documents:

    ·Marriage and divorce certificates for the applicant husband’s sister [Ms E]

    ·Marriage certificates for applicant’s husband’s sisters [Ms J] married to [Mr K] and [Ms L] married to [Mr M], sons of his paternal uncle [Uncle B]

    ·Family Registration Certificate for the applicants

    ·Translation of a news article relating to the alleged honour killing of a woman, claimed to be the applicant husband’s cousin, in respect of which incident his paternal uncle and cousins were arrested.

    Resumed Hearing 29 March 2021

18. The applicant husband clarified that although his two married sisters came to the walima event in Multan, they were not invited and only came to see who he had married.  He did not talk to them there.  His brother also was there on and off and not for the whole event. 

19. During the period his wife was with him in Multan his family was chasing his mother about his whereabouts because he ceased contact with them.  There were no direct incidents for himself or his wife in this period.

20. After she left he went back to stay with his mother, though he was travelling for work most of the time. Because his wife was in Australia and he was mostly away he felt he could face his relatives.  When the invitation came from her relatives, he was summonsed to his uncles and this is when they first came to know she was Sunni and he was beaten up by [Uncle B], [Mr K] and [Mr M]. He did not seek any medical treatment for the injuries.

21. After this there were no other physical incidents.  He realised by this time that they would hold a family meeting of leaders and authorise action to be taken against him so to avoid this he told them he would do whatever they wanted him to.  They told him they wanted him to bring her back and divorce her and marry his cousin as promised.  The Tribunal queried how or why would they want him to divorce her if he had a Sunni nikah which they didn’t recognise anyway.  It also queried why it was necessary for her to be present to divorce? He said in the Shia faith both parties must be present for a divorce which must take place in front of witnesses. Regarding the non recognition of the marriage, he said he proposed this course of action to save himself.  They would not have accepted anything else. Their main aim was to teach a lesson to others not to do the same.

22. He confirmed that nothing else happened to him prior to departing for Australia in June 2015. He said he was mostly travelling for work in this period. When asked if there were any other consequences for others in the family, he referred to the forced marriage of his sister, [Ms E] in August 2017. 

23. The Tribunal asked how he obtained the documents of the marriages of his sisters.  He said his sister [Ms E] sent these to him. The Tribunal asked about his brother, [Mr N]’s marriage and why he had no problems.  He said [Mr N] was promised to his cousin since a young age and so it was done. The Tribunal asked if he could provide the marriage registration for this brother.

24. The applicant husband confirmed his elder two sisters remain married to his cousins. They are no longer in contact with the family because of a fear they would be divorced also. 

25. The Tribunal asked about the relative [Ms C]. She is the daughter of [Uncle B] and married his cousin’s son, [Mr O].  [Mr O]’s sister was killed by [Mr K], [Mr M] and [Uncle B] and [Mr O] because she wanted to marry outside the family.  This occurred in 2008 and they were all arrested. The applicant referred to the translated news clipping he provided about this.  The Tribunal noted that it does not indicate a date or source. He said the photo of the article does show those things and he will resubmit it. It asked what happened to his relatives after the arrest.  He said they put pressure on the mother of the girl and she eventually withdrew the complaint and nothing further was done. His uncle and cousins continue to work for the [government] to this day.  The Tribunal put to the applicant that if his uncle and cousins are capable of such criminal behaviour how could he have managed to marry his wife and hold multiple wedding celebrations including in Multan without facing serious harm. It put o him that it may have doubts he would place his mother and sisters at such risk of retaliation from his uncle and cousins.  In response he said he did what he did because he was in love.

26. The Tribunal asked what and who he fears upon return to Pakistan. He fears his uncles and cousins and fears they will harm or kill him, his wife and his son. He firstly fears his family, but also the community, especially the Wahdat Muslimeen organisation because his relatives are heavily involved with them.

27. The Tribunal put to him that independent information before the Tribunal indicates the incidence of honour killing especially in Punjab is not uncommon but the victims are mostly women and the shame is that brought on the family because of the woman’s actions so this would indicate he is not at risk as he claims.  In response he said the shame is that which he caused to his uncle’s daughter by not marrying her.  She remains unmarried to this day and this is why they would take action against his family. They did not harm him in the 6 months he was there because he promised to take remedial action. When asked why they did not retaliate against his mother, he said his paternal uncle has often abused his mother even when his father was alive.

28. The Tribunal again put to the applicant that its concern is the credibility or plausibility of his claim that he would be able to marry his wife, bring her to Multan and have a public celebration of the marriage and stay together there for one month and not face harm from these relatives.  In response the applicant said he thought by having a public gathering he could make it appear more acceptable and they would not harm him.

29. The applicant’s fears for his son are that his uncle has already referred to him as illegitimate and they will kill him. The Tribunal noted that it is not aware of country information indicating children of love marriages are targeted for harm. In response he said when he thinks of this possibility he thinks he would rather suicide himself.

30. The Tribunal addressed the applicants together.  The applicant wife commented that she doesn’t know why they did what they did marrying against their families wishes.  They just fell in love and did it.  Now when she thinks of the repercussions and impact it has had on so many family members for both of them it is very hard.  She commented that when her husband found out about his sister’s marriage he went into the room and just broke down.  She knows her sister has also been very badly affected by her actions. She feels very bad that she had created many problems for other family members. But now they have come to a point where there is no going back and they have a son and have to think about him.  Their own relationship has suffered also because of this.  They cannot have normal relations between them because she is so terrified of getting pregnant again. 

31. The applicant wife explained that in the period 2007 to 2009 when they were communicating as friends, she had no idea he was Shia because it is just not something he would tell her. By the time she came to know it was too late as they had deep feelings for each other. Even now her family do not know about his education level.  The applicant wife then went on to explain her relationship with her own mother and her deep love for her.  Her mother struggled to take charge of the family after her father’s death.  In the end she agreed to the marriage because she thought it would be a less adverse outcome than a court marriage. They did the public ceremonies to try and get some social acknowledgement of the marriage thinking that would make it more acceptable. They were able to do this also because he was from a different city so he and his family were not known. No one knew he was Shia.  The applicant wife made the point that if she knew he was Shia earlier in their relationship she may not have pursued it.  She comes from a very strong anti Shia tradition and her family are very strongly against them.

32. The Tribunal discussed with the applicants, if it were to accept that they faced a real chance of serious or significant harm from their families in their home area, it must consider whether they would be safe from such harm in any other part of the country.  It asked why they could not live elsewhere in Pakistan where they are not at risk of harm from their families.  The applicant husband said his uncles are involved in the organisation Wahdat Muslimeen which is active all over the country and there is no place they would be safe. Even when he was in Multan they tracked him down at his workplace. They would find him through his mother. 

33. The applicant wife disputed that it was possible to live elsewhere as a Sunni Shia couple. They would have to decide which sect their son would be brought up in and she does not think she can agree to him being Shia.  She said she had not raised this with her husband before now, but she does not think she could agree to it because of her own upbringing. She is concerned that they would be found by their families eventually and would always be worried about that. 

34. The applicants confirmed their fear is on the basis of marrying a person of a different sect and also marrying against their family wishes and outside the family. The applicant husband fears that his Sunni marriage is not recognised by his family and community, his son is concerned illegitimate and he fears they will kill him. The applicant wife pointed out that even if the law doesn’t prevent Sunni Shia marriages, it also doesn’t protect against actions against them because of this issue.  It would be impossible not to be located if they tried to live elsewhere. There are so many ways to find them, from documents and social media.  The applicant wife pointed out that while they are free not to practice their religion in Australia, in Pakistan they would have no such freedom and would have to make a choice which sect to follow and practice. She said there is no area in Pakistan that does not segregate Sunnis and Shias.  The applicant husband reiterated the influence and power in the Shia community of his uncle [Uncle B] and his fear that he would locate him. They also both have relatives in other cities, including Karachi, Hyderabad, and Khyber Pakhtunkhwa.

1. The Tribunal put to the applicants that while it acknowledges independent information that indicates honour killings do occur in Pakistan and Punjab in particular, the information indicates that it is women mostly who are the victims and on this basis it may not be satisfied that there is a real chance the applicant husband or son would be killed by his family.  Specifically it is not aware there is evidence that children of mixed Sunni Shia marriages are targeted for harm or killed for this reason. The applicant husband responded that in order to force him to marry his cousin and redeem the honour of the family they will kill his son.  The applicant wife pointed out that there was a recent case where a family was located by their family in Karachi and the whole family was killed including the children. Also a case of a family in Lahore where their children were killed. The Tribunal invited her to provide evidence of these cases.

2. The applicant wife told the Tribunal that following the previous hearing they tried to get evidence of their communications in the period 2011 to 2014 to support their claims about the extent they were trying to negotiate with their families for this marriage, but unfortunately they were unable to locate any records. The used applications including Nimbus which no longer exists and Skype which only keeps records for 2 years.  

3. The representative made brief oral submissions, emphasising the consistency and credibility of the applicants in their oral evidence, the importance of understanding that the relationship took so long to get to the marriage stage precisely because it was so contentious in their families and that it is critical to understand that they pursued it because they were in love and did not fully consider the dire consequences of their actions for themselves or their family members. Their respective mothers supported the marriage only out of love for their children.  Their situation is complicated now because of the arrival of their son.  The representative requested additional time to provide further written submissions and supporting evidence.  The Tribunal allowed a period of 4 weeks as requested. 

   Post hearing submission 26 April 2021

4. On 26 April 2021 the Tribunal received a post hearing submission from the applicant’s representative attaching and referring to supporting evidence provided in this application to date, including marriage certificates, divorce certificates, family registration certificates for various family members discussed in their evidence; wedding photos and marriage certificate relating to the applicants own marriage; evidence relating to claims made about relatives of each of them harmed in honour related killings; and links to videos of Muslim scholars regarding Shia-Sunni marriage and why it is prohibited.

5. The representative made detailed submissions addressing the concerns raised by the Tribunal during the hearing, including how and why the applicants pursued their relationship and marriage in the face of opposition from their families and the real risk of honour killing of the applicant husband and son.  Numerous articles were provided documenting cases where men and children have also been targeted for harm in this context. It was submitted the evidence establishes that all of the applicant husband’s siblings who are in married relationships are married to his uncle’s children, with one of his sister’s ([Ms E]) subjected to a forced marriage and divorce in retaliation for his action and that each of the applicants have examples of honour killings committed by their family members which is the basis for their fear of harm of a similar nature due to their actions in marrying against family wishes.

6. The following country information documents were attached, highlighting extracts relevant to the arguments made on behalf of the applicants:  

   ·IRB Research Response: Pakistan: Treatment of persons in mixed Sunni-Shia marriages; ability to relocate to other parts of the country; state protection available (2017-December 2018) highlighting specifically issues of state protection and relocation and submitting that the applicants will face difficulties obtaining state protection and relocating safely to any other area in Pakistan due to the power and influence of their extended family members across the country;

   ·Neha Ali Gauhar, Honor Crimes in Pakistan, Unveiling Reality and Perception, Community Appraisal and Motivation Programme (CAMP) 2014 – highlighting references to males as victims of honor crimes, (p24); barriers faced by women seeking to report honour related abuses (p.29)

   CONSIDERATION

   Nationality

7. The Tribunal is satisfied, on the basis of their passports and personal particulars provided that the applicants are citizens of Pakistan, and that Pakistan is the country of nationality and the receiving country for the purposes of the refugee and complementary protection provisions.

   Findings of fact in relation to claims

8. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

9. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.

10. In the present application the applicants seek protection because they entered into a love marriage and they are from different religious sects, tribes and castes.  They claim that their marriage is not accepted by either of their families and by marrying they have transgressed social, cultural and religious traditions. The applicant wife fears that her extended family will harm her because of this and her husband because he is Shia.  The applicant husband fears he, his wife and his son will be harmed by his extended family because he married her instead of his cousin to whom he was promised from a young age.  They do not recognise his marriage which was conducted in a Sunni ceremony and consider his son illegitimate. The applicants fear harm to their son because he is the son of a mixed Sunni Shia marriage.  Both applicants fear their family will fall victim to an honour crime and that the state will not protect them from this harm.  They  claim there is no where they can go in Pakistan where they will be safe from this harm.

    Credibility

11. The applicants gave detailed evidence about their family background, how they met and the circumstances of their relationship over the course of two hearings, in which they were questioned at some length, including about why and how they pursued their relationship to marriage in the face of their knowledge it was going against their family traditions and approval,  and about the marriage tradition in their respective families. The Tribunal took evidence from the applicant wife alone, and then the applicant husband.  Their evidence was substantially consistent with their written statements, oral evidence to the delegate at interview and each other.  They each responded to the Tribunal’s questioning candidly and spontaneously and have not embellished or exaggerated their claims regarding past experiences. In response to the Tribunal’s questioning and concerns raised, they provided more detailed evidence about the marriage traditions in their respective families and submitted documentary evidence and country information to support their claims. After considering their evidence and responses to the issues raised with them, the Tribunal accepts they have generally given a credible and plausible account of their relationship history and marriage and accepts their evidence on this basis.  

    Claims regarding ethnicity, religion, marriage

12. The Tribunal makes the following findings of fact in relation to the applicants’ claims, taking into consideration the favourable credibility assessment of the applicants and the evidence now before it.  

13. The Tribunal accepts the applicant wife is Sunni, from a feudal landholding family from Bahawalpur, Punjab and the applicant husband is Shia of the Saraiki tribe, from Multan, Punjab.

14. Regarding the account of the inception and development of the relationship between them, despite some initial concerns about its plausibility, the Tribunal acknowledges the parties have maintained their account consistently throughout the process of the application, repeating essential elements of the story in their written claims, and in their oral accounts to the delegate and the Tribunal.  The Tribunal has also considered their responses to the Tribunal’s concerns and the submissions of the representative on this issue. It accepts that they met as claimed at the office of the applicant husband’s father and commenced a relationship initially as friends over several years.  Despite some scepticism about how they managed to maintain this secret relationship for so many years given their claimed traditional backgrounds, and their explanation of how they convinced each other’s immediate family to support the marriage, on the basis of the favourable assessment of their credibility, the Tribunal accepts their claims in relation to these matters. 

15. It accepts that they married [in] December 2014 and their marriage is registered.  The Tribunal observes that neither the Marriage Registration certificate nor Family Registration Certificate provided indicates the marriage was solemnised in a Sunni ceremony.  They did not provide a copy of the Nikah Nama, but on the basis of the favourable credibility assessment, the Tribunal is prepared to accept their claim that they married in a Sunni ceremony in Bahawalpur.  It also accepts their claims that they subsequently had several events to celebrate the marriage in Bahawalpur and in the applicant husband’s home town of Multan.

16. It accepts that the husband did not undertake a conversion prior to marriage and that the cleric presumed he was Sunni and he participated in the Nikah ceremony as a Sunni.   It also accepts that the applicant husband’s extended family were unaware of her Sunni background until after she departed Pakistan following their marriage, when her family invited them to a family event during a Shia religious period.  

17. The Tribunal accepts that the applicant wife and applicant husband have traditional families where there is an expectation of marriage within the family and that the majority of their siblings have married within the family.   It accepts that two of the applicant’s wife’s [number] sisters and one of her brothers married cousins. It accepts that five out of [number] of the applicant’s husband’s siblings married first cousins, four of whom married the children of one uncle in particular, [Uncle B]. It accepts that his fifth sister, [Ms E], was forcibly married and then divorced following his departure. The Tribunal accepts these claims on the basis of the applicants’ oral evidence and documents of marriage and divorce certificates provided in support. 

18. The applicant husband claimed that he, like his brothers, was promised in marriage to his paternal cousin, [Ms P], daughter of [Uncle B] and in marrying the applicant wife, he failed to fulfil this obligation.  He claimed that this cousin remains unmarried to this time.   In the absence of anything contradictory or inconsistent, and relying on the favourable credibility assessment, the Tribunal accepts these claims.

19. In summary, and material to the assessment of their protection claims, the Tribunal accepts the applicant wife and husband are of different sects (Sunni/Shia), tribes and castes; that their marriage was a love marriage; that they each come from families with a strong and demonstrated tradition of marriage within the family, and by engaging in a love marriage they transgressed the traditions of their respective families and the applicant husband defied his familial obligation to marry his paternal cousin.   

    Claims of past harm from extended family

20. The applicant husband claimed that after his paternal uncles came to know that she was Sunni, they summonsed him and beat him badly. He stated that he did not seek any medical treatment for the injuries, and therefore there is no other evidence of this incident.  The Tribunal is prepared to accept that his relatives may have been unhappy about his decision to marry a woman of his own choice rather than the cousin he was promised to, and that she was of the Sunni faith, and that they may have beat him for that reason.  However, on his own evidence, he remained living in the same town with his mother after this incident until he came to Australia in June 2015, several months later.  He has not claimed any other incidents of physical violence towards him or any of his other immediate family members in this period.  Despite their anger at him for failing to fulfil his obligation to marry his cousin, [Uncle B]’s daughter [Ms P], they did not attempt to force his marriage to her in this period. 

21. The applicant husband has claimed his sister [Ms E] was forcibly married to and then divorced in retaliation for his actions in marrying the applicant wife.  Documentation evidencing her marriage [in] August 2017 to a [Mr F] and divorce from him [in] August 2018 was provided in support.  A statement from the applicant husband’s mother makes reference to this also. Although this claim is based only on these assertions, the Tribunal acknowledges there is some evidence that this marriage of his sister could be related to his refusal to satisfy his obligation to marry his cousin.[1]  For the purposes of this assessment, the Tribunal is prepared to accept the possibility that this forced marriage and divorce of [Ms E], was done in consequence of his actions.

    [1] Yafet, K.C. 2009, ‘What’s the constitution got to do with it? Regulating marriage in Pakistan’, Duke Journal of Gender Law & Policy, vol.16, August, p. 362 – Attachment 9

22. The applicants have not claimed that they suffered any harm from members of either of their families, or community members, in the years between 2007 and 2011 prior to their marriage, when they were pursuing their relationship, and to the time the applicant wife came to Australia to study.  In explanation for this they claimed that ‘the relationship’ was conducted extremely discreetly throughout this period, for the very reason of the serious consequences for both of them had it been discovered. The Tribunal accepts their account of how they conducted their relationship in this period and why.  They each gave consistent and credible evidence about this. 

23. She returned to Pakistan [in] November 2014 for the purpose of getting married to the applicant husband and stayed there for approximately one month after the marriage, returning to Australia [in] January 2015.  She has not claimed that she experienced any harm from anyone in this period.  The applicant husband explained in his evidence that they lived separately from his family home in this period and he was travelling for work for much of the time, and took the applicant wife with him when he was working. 

    Claims of previous honour crimes committed by applicants’ family members

24. The applicant wife claims there is a history of honour killing in her family demonstrated by the death of her aunt [Ms A] as a result of burns that occurred at home in 2006.  In her written statement she provided a detailed account of what happened to this relative who dared to marry a neighbour’s son in defiance of her family’s wishes, she was later killed by an acid attack in her home. She reiterated this account in her oral evidence to the Tribunal.   The applicant tried to obtain evidence of this incident but was unsuccessful and instead provided evidence of her attempts to obtain a medial report or death certificate for [Ms A].

25. The applicant husband claims that his paternal uncle and cousins were arrested in relation to the acid attack death related to the actions of his cousin by her father and brothers in 2008.  A news article purporting to relate to this incident was provided as evidence.  The Tribunal notes the translation of the news article names the applicant husband’s paternal uncle and cousin, but not the victim. 

26. The Tribunal accepts that honour killings are not uncommon in Pakistan, with sources reporting that around 1000 women are killed in Pakistan every year in honour killings.[2]  Given this country information, the applicants’ generally favourable credibility assessment and the documentation provided in support of their claims, the Tribunal is prepared to accept for the purposes of this assessment,  that the applicants have had incidents of honour killings in each of their respective families in the past as claimed. 

    Is the applicants’ fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s5J(1)(a)?

    [2] ‘DFAT Country Information Report Pakistan’, Department of Foreign Affairs and Trade, 20 February 2019, s. 3.203; ‘World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, p.520

27. The applicants fear harm from extended members of their own respective families, because they transgressed the honour of their families by their love marriage and defied the expectation on each of them to marry within the family.  They also each fear harm from the other’s extended family members because of their respective religious sects.  

28. It was argued on behalf of the applicants by the previous and current representatives that their claimed fear of harm is on the basis of their membership of a particular social group (PSG) being one or more of the following:  ‘persons who have entered into an interfaith marriage’ or ‘persons who had a love marriage’, or ‘persons who married against the wishes of their family.’ 

29. The Tribunal accepts that persons who are in an interfaith marriage;  persons who had a love marriage’ and persons who have married against the wishes of their families are all capable of constituting a PSG as defined in s 5L, in that in each case the group is identifiable by a common characteristic or attribute, which is innate or immutable or so fundamental to their identity or conscience, and is not the shared fear of persecution, and that the common characteristic or attribute distinguishes them from society at large.

30. The Tribunal is satisfied in this case that the persecution feared is for reasons of their membership of the PSG, as defined above, and/or the separate ground of religion. 

    Is there a real chance either or both the applicants would suffer serious harm if returned to Pakistan in the reasonably foreseeable future?

1. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

2. The applicants fear harm from members of their extended family because of the circumstances of their marriage, being from different faiths (Sunni and Shia) and having chosen each other over the choices made for them by their families. They fear harm in the form of honour killings perpetrated by members of their extended families.  The applicant wife fears harm of this nature from her own extended family as well as harm from the extended family of the applicant husband.  The applicant husband also fears harm from the applicant wife’s extended family due to his Shia religion and because of the love marriage, and from his own paternal relatives for reasons of the marriage and having defied the family wishes for him to marry his cousin.

3. On the basis of their evidence and claims the Tribunal accepts the applicants have a subjective fear as claimed. They gave consistent, credible and compelling oral testimony to the Tribunal of their fears and concerns. Apart from her one trip back in 2014 to get married, the applicant wife has not returned to Pakistan since 2011, and the applicant husband has not returned since his arrival in 2015. The Tribunal also acknowledges the evidence provided regarding the impact of the situation on the applicants’ mental health and strain on their relationship.

100.   The Tribunal must also be satisfied there is an objective basis to their fear of harm.  In this regard it has considered relevant country information, including the DFAT Country Information Report expressly prepared for protection status determination, and a range of information from other sources.  It has also taken into consideration the country information referred to by the applicants’ representatives in submissions. 

Sunni/Shia marriages

101.   In respect to interfaith marriages in Pakistan, the DFAT Country Report on Pakistan specifically states that there are no legal barriers prevent marriage between Shi’a and Sunnis in Pakistan, but also notes that while marriages do occur, Sunni-Shi’a marriages are becoming less common in an environment of increasing religiosity. One partner (typically the bride) usually undergoes religious conversion.[3]   The Tribunal observes in the current case the female is Sunni and male is Shia, and in this context it has considered this against the background of Shia being a minority amongst Muslims in Pakistan (DFAT Report reporting that 85-90% of Muslims are Sunni, with only 10-15% Shia), and  the reported trend noted by DFAT of increased religious conservatism and intolerance towards religious minorities in Pakistan, which is likely to continue in 2019.[4]  Historically, Shias have been vulnerable to sectarian violence and attacks by extremists groups, and although the rate and number of such attacks have substantially decreased in recent years since the commencement of counter terrorism operations[5], this could well revert with the volatility of the security situation in Pakistan, and the current period is in fact seeing a surge in anti-Shia sentiments.[6]

[3] DFAT Country Report on Pakistan 20 February 2019, para 3.95, p36

[4] DFAT Country Report on Pakistan 20 February 2019, para 3.80, p34

[5] See for example DFAT Thematic Report Shias in Pakistan 15 January 2016, p9;

[6] Shi’a become latest target of Pakistan’s extremist Islamic factions; murders, hate speech and numerous blasphemy allegation sow seeds of long-term religious tension :

102.   A research response from 2010 cites Dr Shakira Hussein, a fellow at the Australian National University, who observed that arranged marriages with a partner from their own ethnic community is the traditional norm across Pakistan, regardless of social standing:

‘Love marriages which transgress family expectations can result in considerable family pressure being brought to bear. Again, violence could be a part of such pressure. In instances where the male partner to the marriage was from an ill regarded community or caste then he, as much as the female partner to the marriage, could likely find himself the subject of a violent reprisal… Multiple sources indicate that parties to love marriages have been subjected to significant pressures, threats, and violence from their families. The most extreme example of harm against parties entering into a love marriage is the act of honour killing.’[7]

[7] Australian Government RRT, ‘Country Advice Pakistan’, (pages 1-2), 17 November 2010’

103.   The Tribunal has also considered the evidence of the parties regarding their respective religious backgrounds. It notes the applicant wife’s evidence at hearing that her family are particularly conservative Sunni and have always held strong anti-Shia sentiments.  She made clear in her testimony before the Tribunal that as a result of her own upbringing she would not contemplate conversion to Shia for herself or want her child to be Shia.

104.   The applicant husband in his evidence explained that he has always been conscious of his status as a person from a minority religion in Pakistan and this was one of the reasons he and the applicant wife did not discuss religion between them for many years.  It also explains why he was able to ‘pass’ as a Sunni for the marriage ceremony as it was assumed. Because of the minority status of his religion he would never contemplate asking his wife to convert her religion.    

Honour crimes

105.   An honour killing is the culturally acceptable murder of a woman who marries without consent or who refuses to marry a chosen partner.[8]

[8] Yafet, K.C. 2009, ‘What’s the constitution got to do with it? Regulating marriage in Pakistan’, Duke Journal of Gender Law & Policy, vol.16, August, p. 359 – Attachment 9.

106.   The most recent DFAT Country Report on Pakistan states the following on this issue: [W]omen and girls in Pakistan are subject to rights based violations such as, but not limited to, gender based violence including (so called) honour killings and acid attacks, cruel, inhumane and degrading treatment by traditional justice systems called jirgas …. Although the Sindh High Court declared jirgas illegal in 2004, confirmed by the Supreme Court in 2005, they continue to operate. Jirga verdicts can include honour killings, mutilation, and badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men. Family members carry out honour killings against relatives perceived to have brought dishonour on the family by refusing an arranged marriage, forming a romantic attachment not approved by the family or, in the case of girls, for dress or behaviour deemed insufficiently modest While young men can be targets of honour killing, most victims are female. …..In July 2017, a village council in Multan ordered and carried out the rape of a teenage girl as punishment for a crime allegedly committed by her brother. In August 2017, the exhumed bodies of a teenage couple in Karachi showed evidence of electric shocks. The couple had received a death sentence from a jirga. Amnesty International reported a lack of enforcement in 2017 and 2018 of legislation passed in October 2016 that mandated imprisonment for convicted murderers in honour killing cases. Prior to the October 2016 passage of the Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act (2016), the law allowed perpetrators of honour killings to be released if forgiven by the victim’s family.[9]

[9] DFAT Country Report on Pakistan 20 February 2019, para 3.203-3.204, p51

107.   Despite this favourable development in the law which declared murders in the name of family honour a criminal offence, included harsher punishments and partially closed a loophole that allowed legal heirs to pardon perpetrators, sources indicate it has failed to prevent such crimes.[10] The September 2017 Human Rights Watch article noted: ‘The recent spate in “honour” killings demonstrates that harsher punishments do not automatically translate into justice for women. The authorities should ensure that police impartially investigate “honour” killings without bowing to political or other pressure from religious and local leaders, including jirgas [tribal councils].” [11] 

[10] See, for instance, '44 women killed in the name of ‘honour’ in Swat', Pakistan Today, 19 October 2019, 20190723144815; ‘Ending violence against women in Pakistan’, Asia and the Pacific Policy Society, 7 February 2018; ‘‘Honor’ Killings Continue in Pakistan Despite New Law’, Human Rights Watch, 25 September 2017

[11]  HRW, ‘“Honor” Killings Continue in Pakistan Despite New Law’, 25 September 2017

108.   Amnesty International noted in its 2017/18 annual report that despite this change in law, which brought the penalties for honour killings in line with murder,  a judge may decide whether the crime is one of ‘honour’, adding ‘In some cases in 2017, the accused successfully claimed another motive and was pardoned by the victim’s family under qisas and diyat laws, which allow for “blood money” and forgiveness instead of punishment.’[12]

[12] Amnesty International, ‘Pakistan 2017/2018’, 22 February 2018

109.   The 2018 Human Rights Commission of Pakistan (HRCP) report states ‘Across categories, women continue to suffer brutal violence. The overwhelming majority of violent deaths of women were at the hands of men known to them, most often family members. “Honour” was cited in murders of women committed by fathers, husbands, brothers, and in-laws, although further investigations revealed much less lofty motivations. The report cited a former Sindh inspector general of police who said, at a seminar held in Karachi in November 2018, that ‘… Punjab had the highest “honour” related crime rate[13].   Other sources before the Tribunal also support the continuation of a particularly high rate of honour killings in Punjab.[14]

[13] HRCP, ‘State of Human Rights in 2018’, (pages 179-180), March 2019

[14] M. Umair Ashraf, Media Hush on Honour Killing in Pakistan: The Case of Punjab, AL-QALAM, Volume 25, Issue, 1, 2020, pp. 194-204

110.   The same HRCP report noted that ‘Women who exercised or attempted to exercise their own choice in partners were subjected to confinement, beatings, and life-ending violence by fathers and brothers. Rejected suitors exacted their revenge by violently attacking women, often with acid to disfigure the women they claimed to want to marry.’[15]

[15] HRCP, ‘State of Human Rights in 2018’, (page 180), March 2019

111.   The US Department of State’s report on human rights practices in Pakistan in 2019 also notes that honour killings continue to occur:  A 2004 law on honor killings, the 2011 Prevention of Antiwomen Practices Act, and the 2016 Criminal Law Amendment (Offenses in the Name or Pretext of Honor) Act criminalize acts committed against women in the name of traditional practices. Despite these laws, hundreds of women reportedly were victims of so-called honor killings, and many cases went unreported and unpunished. In many cases officials allowed the male involved in the alleged “crime of honor” to flee. Because these crimes generally occurred within families, many went unreported.[16]

[16] Country Reports on Human Rights Practices for 2019 - Pakistan', US Department of State, 11 March 2020,

112.   The National Commission on the Status of Women (NCSW) reported, in June 2017, that there continued to be cases of families registering reports against men, accusing them of abducting the woman they had married (even when the woman stated the marriage was of her own free will), as a way of obstructing a relationship not approved by the woman’s family.[17]

[17] NCSW, ‘Access to justice for survivors of sexual assault’, (page 32), June 2017

113.   In November 2018, Deutsche Welle, reported on a young woman who was the victim of an honour-killing due to her choice of marriage partner, which was against the wishes of her family.[18]

[18] Deutsche Welle, ‘A daughter killed by her family’, 19 November 2018,

114.   In addition to the above sources, the Tribunal notes and has considered additional information and articles documenting honour crimes in Pakistan, and particularly those involving male victims and families, referred to by the applicants in their submissions. 

115.   On the basis of the country information, the Tribunal finds that honour killings in Pakistan occur at a significant level, and Punjab in particular is noted to have the highest rate of such crimes.  Despite the passage in October 2016 of the Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act, declaring murder in the name of family honour to be a criminal offence with mandated imprisonment, the Tribunal finds, on the evidence of information from a wide range of sources, that it has not been effective to prevent such crimes and honour crimes continue to occur with impunity across Pakistan.

116.   Above, the Tribunal has accepted that the applicant wife and husband are a Sunni/Shia interfaith couple who had a love marriage; that they both come from conservative traditional families with strong traditions of marrying with the family; and by their marriage they have transgressed the traditions of their respective families.  The Tribunal also accepted the applicant husband defied his obligation to marry his paternal cousin, and that both applicant wife and husband have incidents of honour crimes in their respective families, including, since their marriage and in retaliation for it, the forced marriage and divorce of the applicant husband’s sister in 2017 and 2018. 

117.   The Tribunal notes that the applicants married in 2014 in the presence of their immediate family members and had a number of public celebrations of the marriage in both Bahawalpur and Multan.  It also notes that, notwithstanding one incident in which he was beaten by his uncles and cousin, the applicant husband was able to remain living in Multan for another 6 months after that without adverse consequences from his family before coming to Australia.   While on the one hand this suggests no interest in harming them from their extended families, the Tribunal accepts that what occurred in the past is not always determinative of what will occur in the future. 

118.   The applicants have claimed that since their marriage, they now have a child together and there is no going back on the relationship.  They now also fear harm to their child in addition to themselves and that the decision of which religion he is raised in adds a further area of contention for their respective families.  The forced marriage and divorce of the applicant husband’s sister, the history of honour killings in each of their families, together with the substantial country information about the continuing prevalence of honour crimes in Pakistan, leads the Tribunal to conclude that there is a real chance, in the sense of one that is not far fetched or remote, that the applicants will face serious harm including murder or significant physical ill treatment at the hands of either of their own extended family members for reasons of their membership of the PSG of couples/families in an interfaith/love marriage or persons who have married against the wishes of their families, or their religion, should they return to Pakistan in the reasonably foreseeable future.  Although the country information indicates generally that women are most frequently the victims of such crimes, the Tribunal accepts there is also information and reports of male victims of violence, and indeed families (including children) who are targeted for such harm and on that basis the Tribunal is satisfied that all of the applicants face a real chance of such harm. 

State Protection

119.   As the perpetrator of harm in this case are the applicants’ family members, the Tribunal must consider whether they could seek protection against such persecution from relevant state authorities. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

120.   A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

121.   On the basis of country information, the Tribunal finds that police capacity in Pakistan is limited due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary and public perception of police is low.[19]  Additionally, while there is a criminal law, and in respect of honour crimes in particular there has been some positive developments since 2016, specifically criminalising honour crimes, increasing harsher punishments and disallowing pardons for perpetrators, the amendments have been widely seen as inadequate and ineffective and have failed to prevent these crimes. The country information, referred to above suggests that police and local authorities tolerate or condone such crimes in their actions or lack of actions, often precisely because they are crimes against persons who have entered love marriages against the wishes of their family, that is for reasons of their membership of this PSG. 

[19] DFAT Country Report on Pakistan 20 February 2019, para 5.11, p63.

122.   On the basis of this evidence, the Tribunal accepts the authorities in Pakistan, in particular the local and state authorities, are not willing and able to protect members of the identified particular social group, nor the applicants individually as members of that group.

Does the real chance of persecution relate to all areas of the country?

123.   Given the location of the applicants respective families in Punjab and the country information that indicates a high incidence of honour crimes in particular in that province, the Tribunal is satisfied on the evidence that the applicants face a real chance of serious harm in their home province of Punjab. 

124.   However, for the purposes of s5J(1)(c) it must also be satisfied that they will face a real chance of such harm in all areas of the country. The Tribunal has considered whether the applicants could live elsewhere in Pakistan where they would not face a real chance of serious harm. 

125.   In response to this issue the applicant wife and husband argued that they would not be safe anywhere in Pakistan because their families would be able to locate them and if located would subject them to an honour crime. The applicant wife also referred to difficulties the family would have living elsewhere in Pakistan as a mixed Sunni Shia family and the harm and discrimination they would face on this basis.  She expressed fear that her family or her husband’s family would have the means to locate them wherever they went from documents or social media or from contact they had with their mothers.  The applicant husband referred to his uncle and cousin’s employment at the [government] and their ability to use their position and influence to locate the applicants. He also referred to having relatives in other cities including Karachi, Hyderabad and Khyber Pakthunkhwa and the ease with which they could be located in any of these places.

126.   The Tribunal has considered the applicants’ evidence and country information regarding Sunni Shia marriages and honour crimes referred to above.  While it accepts that in theory, there is freedom of movement in Pakistan, and internal migration is widespread and common,[20]  it finds that the applicants’ profile as an interfaith Sunni Shia couple, who have acted against the wishes of their respective families and would be unable to rely on extended family support, would face problems, lack of acceptance and be vulnerable to harm wherever they go in Pakistan.  The Tribunal accepts that neither the applicant wife or husband will convert to the other’s sect, and they will be living as an interfaith couple.  In seeking to establish themselves independently in any city, the Tribunal accepts they would have to obtain employment, register with local authorities for education of their child  and otherwise establish a public profile and  in doing so, could be located by members of their extended family. The Tribunal accepts that the applicant’ wife’s family, as a feudal landowning clan, likely has the means to seek her out were she to return to Pakistan.  Similarly, it accepts the applicant husband’s uncle and cousins, through their employment with the local [government], have means and resources to locate them. Having accepted there is a history of honour crimes in both families, the Tribunal cannot be confident that they would not be motivated to seek them out were they to return to Pakistan.

[20] DFAT Country Report on Pakistan 20 February 2019, 5.31-5.32, p 66

127.   A 2018 IRB research report specifically states in relation to this issue:

According to the HRCP representative, "[i]f there are cases of mistreatment in any particular region, people relocate to the bigger cities where people are usually not much bothered about such issues" (HRCP 14 Dec. 2018). In contrast, the Teaching Fellow stated that "in most situations," the ability for a mixed Sunni-Shi'a couple to relocate to another part of the country "will be very difficult owing to a number of economic, social and legal reasons," and that it will also be just as or more difficult to find a more accepting social situation (Teaching Fellow 10 Dec. 2018).

According to the Reader, a couple would generally need to conceal their "mixed" status to make their relocation desirable (Reader 12 Dec. 2018). The Reader added that "[i]f this status is revealed, social circles may become constrained, offering less protection if the mixed couple were targeted" (Reader 12 Dec. 2018). The Reader further stated that  there is no reason to believe that mixed-marriage risks are confined to places with high levels of sectarian polarisation/politicisation … because although some places are especially polarised along Sunni-Shi'i sectarian lines, there is no place where local norms are such that mixed couples are positively valued as such. (Reader 12 Dec. 2018) [21]

[21]  PAK106222.E Pakistan: Treatment of persons in mixed Sunni-Shia marriages; ability to relocate to other parts of the country; state protection available (2017-December 2018) Research Directorate, Immigration and Refugee Board of Canada, Ottawa31 December 2018

128.   In respect of state protection for mixed Sunni Shia couples, the IRB response states:

According to the HRCP representative, "[t]here are no special departments or agencies to deal with the problems of people in mixed marriages in Pakistan" (HRCP 14 Dec. 2018). The HRCP representative added that "[i]f there is a security issue or any other problem, people in mixed marriages can always contact the police or other law enforcement agencies" (HRCP 14 Dec. 2018). However, the Reader stated that "state authorities are generally reluctant to get involved in 'family matters' like marriage choices, particularly where, in a strict sense, the marriage is not actually illegal so the authorities are being called upon to protect the couple against extra-legal family norms" (Reader 12 Dec. 2018). Similarly, the Teaching Fellow stated that "it will be almost impossible" for authorities to intervene if cases of mistreatment are not considered crimes (Teaching Fellow 10 Dec. 2018).

According to the Reader, "[b]roadly, where there is credible evidence of a violent threat, current trends suggest very little scope for reliable in-country protection extending to mixed couples" (Reader 12 Dec. 2018). The Teaching Fellow stated, "[a]s in the case of acceptability, assistance too will be available far more in urban areas and … to 'upper-class' or educated upper middle-class couples" (Teaching Fellow 10 Dec. 2018). The Reader added that

[i]f violence or kidnapping is involved (and this is not difficult to imagine), local authorities will be sensitive to local hierarchies, i.e. if powerful families press for action 'against' the perpetrators of such crimes (unlikely in these cases), the authorities may intervene, but if powerful families push against police intervention (for whatever reason), support from the authorities will be less likely. (Reader 12 Dec. 2018)

The Reader further stated that [d]uring the past year, local authorities (and the police in particular) have not always been deployed in a 'neutral' way vis-a-vis doctrinal divisions; in some cases, they have been deployed in partisan ways. Having said this, however, police were deployed in very large numbers to prevent Sunni-Shi'i violence during Muharram [the first month of the Islamic calendar]. (In the past, this was not always the case, leaving room for predictable periods of violence.) So, the record is mixed and unpredictable. (Reader 12 Dec. 2018)

129.   While the Tribunal accepts that the discrimination, ostracism and social exclusion that the applicants may face as an interfaith, Sunni/Shia couple throughout Pakistan may not amount of itself to serious harm as that term is contemplated for the purposes of s5J(5), it cannot be confident that the applicants would not be located by their family members in any major city or region they may go to in Pakistan and therefore be at risk of an honour crime, or that they will be protected adequately against such efforts to locate them or harm them by the police.  

130.   Given the findings above regarding the applicants’ respective families’ history of honour killings, the Tribunal is satisfied in this case that the real chance of serious harm relates to all areas of the country.  

131. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

DECISION

132. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Meena Sripathy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…