1713767 (Refugee)

[2023] AATA 1290

1713767 (Refugee) [2023] AATA 1290 (18 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1713767

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Christine Cody

DATE:18 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 March 2023 at 5:20pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – particular social group – women – unmarried mothers – love marriage without family consent – honour killing – forced pregnancy termination – refusal of arranged marriage – gender-based violence – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220

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 dependants.

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 8 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

2. The applicants are a mother (“the applicant”) and child (“the child”) who claim to be citizens of Pakistan. The applicant was born in Lahore, Punjab, Pakistan, in [year] and is now aged [age] years. The applicant came to Australia [in] November 2014, holding a [Student] visa. The applicant applied for the visa on 22 December 2014. The child was born [time period] after the applicant arrived in Australia in [year] and is now aged [age] years.

3. The applicant lodged an application for review to the Tribunal. The Tribunal had 2 hearings, and indicated to the applicant that it would send a s 424A letter due to its concerns. The Tribunal has found that the applicant is not a witness of truth and she is prepared to tell multiple untruths to obtain a migration outcome. However, the Tribunal is prepared to accept a minimal amount of evidence from the applicant (mostly when it is corroborated by other evidence), and when this is considered in the context of the relevant country information, the Tribunal accepts that the applicant faces a real chance of serious harm for reason of her membership of a particular social group. It has therefore not sent out a s 424A letter but has decided to remit the matter for reconsideration.

   The Department[1]

   [1] There are no non-disclosure certificates on the Department file.

4. Departmental records[2] indicate that the applicant was granted a student visa on 17 February 2014 with [Mr A] as her dependent spouse. They entered Australia 9 months later [in] November 2014. Five weeks later the applicant claimed protection, but did not include [Mr A] in her application. [In] 2015 her son was born and he was added to her protection visa application as a dependent.[3] On [date] 2015 her student visa was cancelled. On 25 February 2015 she engaged her current agent.

   [2] As set out in the delegate’s decision record.

   [3] The applicant provided a Notification of Changes in circumstances dated [date] 2015.

5. The applicant’s background and claims changed significantly while they were before the Department, including changing the details of the person to whom she was married and from whom she faced harm.

6. Initial claims: The applicant’s protection visa application form was completed by hand, without assistance (as stated in the form), and signed and declared to be true and correct on 19 December 2014. The applicant added a typed statement containing further detail of her claims on 18 December 2014. According to these documents, as well as her Form 80 signed 19 December 2014, the applicant’s background and claims can be summarised as follows:

   ·     The applicant is one of [specified siblings]. Her father passed away when she was [age] years old, her mother is still alive. Her religion is “Islam”, her ethnicity is “Punjabi” and her only language is Urdu.

   ·     She completed tertiary education, graduating in [year] with a [Qualification 1] from [University 1], Pakistan.[4] Between [year] and 2005 she was employed at [an agency] in [location] as [specified roles].

   ·     The applicant met her husband [Mr A] while working. They fell in love and it was a love marriage which did not have the consent of respective families. Her family was against her marriage and threatened to kill her. She fled her home to marry him [in] July 2013 and they lived in a rented house at [location] in Lahore.

   ·     The applicant suffered physical and emotional abuse in the marriage. She became pregnant, but [Mr A] did not want the child and facilitated a termination.

   ·     The applicant was told by [Mr A] that there was a threat to her life from her family members, so he would send her abroad for her safety and he would accompany her. As he was not educated but she was, it was decided that she would apply for a student visa, on which he would be the dependant. In February 2014 the student visa was granted.

   ·     In [2014], the applicant was again pregnant. [Mr A] again wished the second pregnancy to be terminated, but the doctor refused to do so.

   ·     When they departed for Australia in November 2014, the applicant was [pregnant].

   ·     Shortly after arrival, [Mr A] abandoned her and took all her money and jewellery.

   ·     She called her sister in Pakistan who told her not to return to Pakistan because she had defamed the family by entering into a love marriage without their consent.

   ·     She feared that both she and her [as then unborn] child would be killed should they return to Pakistan.

   ·     There is no protection for women in Pakistan; there is discrimination, abuse and domestic violence, which is partly tolerated/sanctioned by the state.

   [4] Documents in support of her education and exams in Pakistan were provided.

7. On 25 February 2015 the applicant requested, through FOI, via her agent, copies of her student visa (and protection visa) Departmental files. On 27 March 2015 she was provided with those files.[5] Documents relating to her offshore student visa application are located on the current (protection) Departmental file.

   [5] In part, according to the delegate’s decision record.

8. Offshore student visa documents: The student visa application signed and declared to be true by the applicant on 4 September 2013 confirms that the applicant is married to [Mr A] and that he is her dependent spouse. Contrary to her protection visa application she claimed to have been working at the [agency] for the last 8 years (the [agency] provided a letter supporting her application). She claimed that she intended to study a [Qualification 2] in Australia.[6] Contrary to her protection visa application she only declared [fewer siblings]. She provided a 12 page “supporting statement” (in English) as to how she satisfied the “genuine temporary entrant” requirement. She provided details of her extensive research into the course, her incentives to return to Pakistan included her family and the responsibility of her and her husband [Mr A] to look after his parents. She belongs to a “cohesive family”, and they spend every spare minute together doing family activities. Upon return she will have a good job and will live with family; she also has extended family in Pakistan. While there is no doubt that there are safety issues in Pakistan, she has lived with this all her life and unrest is normal. Women are becoming influential leaders in business, and they have an advancing role in the workplace.

   [6] Documents in support were provided.

9. New claims: On 4 and 5 May 2015 the applicant signed protection visa application forms for the child, represented by her agent. It is stated that his ethnicity is Punjabi, religion is Sunni Muslim, and that he is not making his own claims for protection. For the first time it is declared that [Mr B], born and currently residing in Hafizabad, Pakistan, is the applicant’s “husband”, and the father of the child. Thereafter, the applicant provided a statutory declaration dated 24 June 2015 and supporting documents.

10. The statutory declaration of the applicant dated 24 June 2015 contained new, changed claims. She stated:

    ·     After the applicant submitted the first statement she later realised that the documents submitted to the Department did not correctly reflect her story. She then approached her current agent to make corrections.

    ·     She was born to a conservative Punjab family in Lahore in [year], in which the daughters were not to be educated and her mother was beaten by her [the applicant’s] father (who died in 1991). She is one of [number] siblings; she has [a number of brothers and] sisters, one of whom passed away in 2008.

    ·     Following her father’s death, her mother supported her [the applicant] in receiving a university education, however her mother, herself and her sisters remained subject to the authority of the [males] in the family. She graduated from [named] University in [year];

    ·     Her brothers are not educated and do not like freedom for women. She claimed her female siblings were in abusive relationships. The applicant worked at her sister’s [agency] which was opposed by the brothers. In 2010 the applicant went to work in a [business]. One of her brothers found out about her employment and beat her to the extent she suffered a serious injury [specified]. She left the family home and entered the household of a married sister, [Sister B] and continued to attend her job. This is where she met [Mr B]. He was already in an arranged marriage but they fell in love. They kept their relationship secret.

    ·     The applicant herself had been promised into marriage to a cousin, [Cousin A], however arrangements for this wedding had not progressed at this time.

    ·     [Mr B’s] family members learned of the relationship and forbade him from divorcing his first wife or to continue his relationship with the applicant as it was a prohibited intercaste union. Her brothers started to exert pressure on her to marry [Cousin A].

    ·     She began to seek ways of leaving the country with [Mr B]. [Mr B] asked her to delay her plans as he did not have the financial capacity, however she was determined to depart Pakistan, and sought advice from a number of visa consultants.

    ·     In April 2013, she was contacted by a visa consultant called “[Agent A]”, who put to her that she could apply for a student visa for Australia, which would be financed by a man not known to her previously, [Mr A], on the condition that he was included in the application as her dependent spouse, in a “paper” marriage that could be easily ended upon her arrival in Australia. She was shocked by the plan and refused. However, she was observed in the consultant’s office, and her brothers learned that she was applying for a visa for Australia, so they beat her for the reason that she was committed to marrying her cousin, [Cousin A]; whom she did not want to marry. They locked her in her room for 2 days.

    ·     She again asked for [Mr B] to help her but he stated he had no money to go abroad. In June 2013, she decided to agree to the plan put to her by the Agent “[Agent A]” and she signed certain documents in July 2013, which would allow the Agent to first facilitate a “paper” marriage and then lodge a student visa application for Australia. She did not hear anything further in relation to the application for a number of months, during which time her brothers were progressing her marriage to her cousin, [Cousin A], which was to be [in] November 2013.

    ·     Ahead of the arranged date of her marriage, [Mr B] agreed to a secret court marriage which took place [in] November 2013, following which he provided accommodation for the applicant in hotel rooms and later in an apartment, from where it was not safe for her to leave. She learned that her brothers had come looking for her at a sister’s house, but upon not locating her [the applicant], the brothers assaulted her sister and damaged property at the house.

    ·     She told [Mr B] that she had signed documents at the visa consultant’s office which would facilitate a paper marriage for her for the purposes of being granted a student visa. He became angry and he beat her. She could no longer reach the original visa consultant as he had disappeared and switched off his number. A second visa consultant “[Agent B]” took over carriage of the student visa application. By January 2014, the applicant learned she was pregnant. [Agent B] told her that if she did not terminate the pregnancy, she would be liable to repay AUD18,000 to [Mr A] for the visa application, thus far. Her first pregnancy was terminated. She again fell pregnant but was advised against a further termination, and when she finally learned that her visa was granted she was [pregnant]. [Mr A] threatened her, saying she could not renege on the arrangement as she owed him AUD18,000.

    ·     She and [Mr A] agreed that the arrangement would proceed on the condition that divorce papers were prepared and signed by both parties in advance, prior to their departure from Pakistan. [Mr A] undertook to continue with the arrangement in Australia, where he would be responsible for her [the applicant’s] student and living expenses.

    ·     However, upon entering Australia [Mr A] left her at the reception of a hotel, and she has not seen him since. He re-established contact on one occasion when he found his student visa had been cancelled. He demanded repayment of AUD18,000.

    ·     She fears that she will be seriously harmed if she returns to Pakistan for the following reasons:

    o   Her brothers would harm her for ruining the honour of the family and she fears she would become a victim of honour killing. They would kill her child as well.

    o   [Mr B’s] family would target and kill her and her child because they think that she has ruined their family and their reputation. [Mr B’s] wife’s family will look for her anywhere in Pakistan and if her relationship is exposed, they would make it a big issue with her family and she fears they would even put an advertisement in the paper to find and kill her and her child. [Mr A] would target and harm her because he could not continue his student visa.

    o   She also fears that [Cousin A] also may harm her because from his perspective she has cheated him and run away with another male.

    o   Though she speaks to [Mr B] she is not sure whether he would ever accept her as his wife and her child as his.

    o   She fears she will be particularly targeted because she is a single mother without support.

    o   Due to the above reasons, she fears she would face significant economic hardship to subsist.

    ·     She fears she cannot obtain state protection in Pakistan because if she seeks police help, the police would then start harassing her sexually due to her single mother status and she would become a victim of them. She fears even if she moves to other parts of Pakistan, she will continue to face harm and would face practical difficulties to move around because of the following reasons:

    o   She is a single mother.

    o   Her family and [Mr B’s] family including his wife’s family will trace her to punish her. [Mr A] and [Cousin A] also would target her even if she moves to other parts of Pakistan.

    o   Further, with her child, it will be very difficult to move around Pakistan to save her life.

11. On 28 August 2015 she provided a Notification of Incorrect Answers form stating that in her protection visa application form she had: provided incorrect addresses, incorrect details of her employment (now claiming to have worked both at the [agency] from 2005–2013, and from 2010–2012 in a [business] as [an occupation 1], and providing details of her claimed family-in-law.

12. Interview: The applicant attended an interview with the delegate on 28 August 2015. It appeared that the delegate may not have seen the changed claims before the interview. The delegate did not accept that the applicant was a credible witness. There were a number of concerns raised by the delegate relating to her changing claims and the details and inconsistencies in her claims, and that the applicant did not have a photo of herself with her claimed husband [Mr B] (although she claimed to have a photo of him).

13. After the interview the agent sent a letter dated 22 September 2015 attaching:

    ·     A translated copy of a marriage certificate dated [in] November 2013 for the applicant and [Mr B].

    ·     A translated copy of a divorce declaration dated [in] November 2014 ([Mr A] divorcing the applicant).

    ·     A copy of a letter from the applicant’s sister [Sister A] stating that the applicant is in a love marriage with [Mr B].

    ·     A copy of a letter from the applicant’s sister [Sister B] stating that the applicant is in a love marriage with [Mr B].

    ·     A copy of a letter from the applicant’s roommate [Roommate A] stating that the applicant is married to [Mr B]

    ·     Copies of WhatsApp messages (untranslated) between the applicant and [Mr B].

    ·     Photos that the applicant claims are of her and [Mr B] at Lahore airport. 

14. Further documents were provided including the divorce between the applicant and [Mr A] granted by a court in Australia (effective [in] April 2016) and a psychological report (referred to further below) stating that the applicant suffers from mixed anxiety and depression that is being treated by cognitive behaviour therapy.

    The delegate’s decision record

15. The delegate accepted that the child was a member of his mother’s family unit. The delegate found that the applicant has a history of being complicit in the submission of false statements and bogus documents to the Department and was not satisfied that she has been genuine with her testimony or documents.

16. The delegate considered the applicant’s 2 main claims, noting that both substantially assert familial opposition to a love marriage forced her to flee Pakistan. In the first set of claims she claimed to be the subject of domestic violence and that she was forced to terminate a pregnancy (claims which she subsequently requested not to be considered). In the second set of claims the applicant claimed that she had angered her brothers by not entering into a marriage with a cousin, which had been arranged between them in childhood.

17. The delegate found that the claims did not have a nexus with race, religion, nationality or political opinion, and as such the applicant does not meet the criteria of membership of a particular social group, therefore the applicant was found not to be a refugee as defined in s 5H and the criterion in paragraph 36 (2) (a) of the Act was not satisfied.

18. Concerning complementary protection, the delegate noted that her claimed genuine husband could not get the consent of his family to marry a second wife. The delegate referred to country information indicating that second marriages can occur in certain circumstances. The delegate considered that country information supports the applicant’s claims that parties to love marriages entered into without the consent of their respective families, could be threatened by members of the respective families. However,the delegate considered the applicant’s claims against the cumulative contradictions, disparities and implausibilities and was not satisfied that her claims were made out.

    The Tribunal

19. The applicants applied to the Tribunal for review of the decision on 28 June 2017. The applicants provided a copy of the delegate’s notification of refusal to the Tribunal. They were represented by their agent.

1. The applicant provided a further statement dated 14 May 2021 (with a correcting statement dated 20 May 2021), submissions from the agent and further documents which have been considered, referring to fear of significant harm including torture; degrading, inhuman, and cruel, ill-treatment and abuse from the applicant’s family, relatives, her ex-husband’s family and family and friends of [Cousin A] and [Mr A] and the conservative Islamic and Pakistani society due to the applicant’s particular circumstance as a single mother without male protection who is perceived as a person who has destroyed the honour of the family and the Pakistani society.

2. The scheduling of hearings was affected by the COVID-19 pandemic. The first hearing occurred in May 2021 and the applicant gave evidence, as did her witness [Roommate A]. An interpreter in the Urdu language was present. The second hearing was scheduled but was then postponed due to the COVID-19 lockdown and the Tribunal was not holding in-person hearings. The Tribunal then relisted the second hearing after the Tribunal recommenced in- person hearings and the applicant attended in person with her agent on 17 May 2022. At the second hearing the Tribunal apologised for the delay in holding the second hearing, and asked the applicant if she wanted to provide any update. She said that there are no changes in her circumstances. She said that she works for a [specified business] 5 days from Monday–Friday from 9–3; her child goes to school. She works on a casual basis so if she or her child are unwell she will take time off.

3. The Tribunal asked the applicant the reasons why she does not want to return home and she said she is afraid of her brothers because she eloped from her home and had a love marriage, and she is also afraid of [Cousin A] to whom she was promised as a child. She is also afraid of [Mr A] who threatened her and [Mr B’s] family and his wife’s family. She is a woman in Pakistan and they don’t have rights. She will be a single mother looking after the child on her own. She won’t be able to find work as a mother or single woman, it will be difficult and if she finds work they will harass her in the workplace because she is a single mother and they will want to have illicit relationships with her and she will not be able to refuse them and she won’t be able to get help from police because they also harass women. She said there is no other reason.

4. Further discussion of the evidence at hearings is set out below.

   Country of reference

5. The applicant produced her passport issued by the Pakistan authorities to the Department and Tribunal. The Department accepted that she was a citizen and national of Pakistan, and assessed her claims against Pakistan. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Pakistan, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Pakistan.

6. The issue in this case is whether the applicants meet the definition of refugee or are entitled to complementary protection or whether they are members of the family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

   Concerns as to the credibility of the applicant’s claims

   Relevant law about claims

7. 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 the 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.

8. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

9. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

10. As Kirby J observed in Dranichnikov v MIMA:[7]

    The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[8]

    [7] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.

    [8] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].

11. At the hearings the applicant was asked questions about her claims.

12. Concerns arising from her evidence and other matters led the Tribunal to conclude that she is not a credible or reliable witness, for reasons including the following:

    ·     The Tribunal did not find the applicant’s explanation for changing her initial claims before the Department to be credible. The applicant blamed her “incorrect” claims on her level of English when completing her forms (in December 2014). In her protection visa application form (December 2014) she did not even declare that she could speak, read or write in English. The Tribunal noted however that 2 years earlier, [in] June 2012, she received an IELTS English score that was sufficient for her to study at university in Australia. Even when this was put to her, she maintained that her English was not good enough to understand what she had written in her protection visa application form. The Tribunal notes that she provided hospital notes relating to the birth of her child ([2015]) which indicated that she did not need an interpreter. In her application form she claimed she received no assistance in completing the form. However, to the Tribunal the applicant gave confusing evidence that she had been assisted in writing the form (the other person helped her because the applicant as a pregnant woman found it difficult to remain seated), however she then admitted that the form only contained one set of handwriting, which was hers. The applicant also claimed that she had mental health issues and was pregnant at the time she completed her form; there is not medical evidence to support that this made the applicant make up detailed, false claims about her background and history in Pakistan and the reasons why she would face persecution. The applicant also claimed to the Tribunal that it was “accidental” that she gave false information and she didn’t intend to. The Tribunal does not accept her explanations for her claimed incorrect initial claims, including because, as noted below, she was prepared to reproduce those same claims to the Red Cross in order to obtain money, although by the time she did so she claims she was well aware that the claims were “incorrect”. The Tribunal finds that the applicant knew what she was submitting to the Department in her initial protection visa claims and that she did so willingly. This undermines the credibility of her first claims and her second claims. 

    ·     Even within her initial claims there were inconsistencies: in her protection visa application form she claimed that both her family and her husband’s family will mistreat/harm/kill her, but in her more detailed typed statement she claimed that it was only her family who would kill her.

    ·     The applicant claimed in her protection visa application that she was only employed at the [agency] between [year] and 2005; however, in her offshore student visa application signed in September 2013 she claimed she had been employed there for the last 8 years and was still employed there before leaving Pakistan. After she had access to her student visa file through FOI, she then lodge a Notification of Incorrect Answers in her protection visa case stating that she had worked at the [agency] from 2005-2013 (without explaining why her initial work claim in her protection visa application form was so different). She provided a 12 page typed submission in support of her student visa application and then made contradictory subsequent claims in her protection visa proceedings. While claiming in her student visa submission that the situation for women and work is good in Pakistan, and claiming that she has close and cohesive family relations in Pakistan including with [Mr A’s] family, in her protection visa proceedings she claims the opposite.

    ·     The Tribunal does not accept that the applicant was unaware of what was claimed on her behalf in her student visa application and submission; it finds that she knew what she was claiming and what she was relying upon, including documents that she claims were false, noting that she submitted with her protection visa application form a marriage certificate showing she married [Mr A] [in] July 2013, then subsequently claiming that there was no marriage, she just used this to come to Australia. 

    ·     The applicant applied to the Red Cross for financial assistance (SRSS) [in] June 2015. The Tribunal noted that the applicant provided detailed information as to who had provided her with money and her dire financial situation, yet she maintained that her husband was [Mr A] who had abandoned her in Australia (despite telling the Tribunal that she was aware that her protection visa claims were incorrect as early as January 2015). Indeed, in making her SRSS application in June 2015, she stated that she had lodged a protection visa application because it was appropriate for her circumstances (which circumstances she claims now were not true at that time, and that she was aware of this). She had failed to disclose to the Red Cross that her actual husband, and the father of her child, was [Mr B]. She also failed to disclose to the Red Cross that [Mr B] had sent her money (she had also failed to disclose this in her protection visa proceedings, maintaining that she was unsure of his attitude to her, yet claiming, when the Tribunal asked her how she survived in Australia without working, that [Mr B] sent her $1600–$1700 beginning in 2015. She also claimed to the Red Cross, when seeking their support, that before lodging her protection visa application she had received “informed legal advice”. [9] This is contrary to her evidence to the Tribunal about the circumstances surrounding the lodgement of her protection visa application forms. If she had received “informed legal advice” then it would be expected that she would have provided true claims and that she would have been aware of what those claims were. The Tribunal put to the applicant its concerns with her perpetuating the claim to the Red Cross that [Mr A] was her (genuine) husband, and her failure to disclose to them, when seeking money, that [Mr B] had given her money. In response she said that they didn’t ask her about this. The Tribunal does not find this explanation to be persuasive (and it contradicts the level of detail she provided in her application concerning who had provided her with financial support). The Tribunal also notes that, at another stage in the hearing, she claimed that she had received no financial support from [Mr B], and that he did not accept her or her child, from the time she arrived in Australia until the end of 2015. This undermined her evidence that she had survived because she had received money from [Mr B]; and indeed she then changed her evidence and said that he did send support twice.

    [9] SRSS application, Delegate’s decision record.

    ·     The Tribunal notes that the witness [Roommate A] provided a statement of funds she had given to the applicant to support her as she understood from the applicant that she had no money. However, as noted above, the applicant told the Tribunal that she had been sent money from [Mr B] to support herself and the child. When the Tribunal asked the witness about this, the witness said that she did not know that [Mr B] had provided money to the applicant, and indeed (having regard to what the applicant had told her about [Mr B]), she does not believe that he would have given her any financial support. This is evidence that the applicant is even prepared to tell untruths to a person from whom she is asking for financial support, in order for her to obtain the (financial) outcome she desired. 

    ·     The applicant claimed to have lived at 2 addresses only in her application form: from birth she lived in the family home in [Address 1], Lahore, moving once in her life when she married and left the family home in July 2013 to live with her husband [Mr A]. However, (despite telling the Tribunal that her application form was correct), she had indicated that the information as to her addresses was incorrect. She provided additional addresses in her Notice of Incorrect Answers, which she later claimed were addresses where she lived with her claimed real husband [Mr B], and when she was living independently with her sister [Sister B]. Her reason for not declaring these other addresses in her protection visa application form was “Due to my mental disturbance I don’t have enough information”. The Tribunal did not find this persuasive and does not accept this. It considers that she provided additional addresses to provide consistency with her second set of claims about [Mr B] being her husband. 

    ·     When the Tribunal asked her why she got her passport, she said it was so she could apply to go overseas. The Tribunal asked why, and she said because she had had an affair with [Mr B] who used to tell her that their families will not accept their relationship here so they should go overseas. The Tribunal asked when she first met him and she said the first week in August 2010, and they started the affair in November 2014. The Tribunal put to her that her reason for applying for her passport then did not make sense, as she had told the Tribunal that she had applied for her passport in [month] 2010 (before she met him). She then changed her evidence as to why she applied for her passport; she said that she wanted to go to Umrah, so she got her passport for that. When asked if she went to Umrah, she said no.  The Tribunal does not find her explanation persuasive, noting she changed her explanation for getting her passport when the Tribunal noted her initial explanation was not possible. The Tribunal considers that this undermines her claimed affair with [Mr B] and is a further instance of the applicant providing untruthful evidence. 

    ·     In August 2015 when the applicant attended the interview with the delegate, she did not have available a photograph of her and her claimed husband. The Tribunal asked her about this. She responded that at that moment she did not have a lot of photos, she had to ask her sister to find it in her sister’s phone. The Tribunal put to her that by the time of the interview she had been in Australia for 9 months. She provided various reasons about leaving her phone in Pakistan and having a phone that was damaged; the Tribunal put to her that its question was, why, if she was in a genuine love relationship, she would not have already asked her sister (upon arrival in Australia) for a photo of her and [Mr B] together. The Tribunal put to her that only asking for a photo from her sister 9 months after she arrived in Australia (and because the delegate asked her to do so) was difficult to understand. She responded that photos were not on her mind at that time, she was more worried about how she would survive and her baby. The Tribunal accepts that she had concerns, but at this stage she claimed the relationship was ongoing. The Tribunal considered it difficult to understand why she would not have asked earlier for a photo of them together if they were in a genuine relationship.

    ·     The applicant’s claims that she was born into a highly conservative traditional family who wanted her to marry [Cousin A], who did not believe in education or independence for females were undermined by other aspects of her evidence. She told the Tribunal that girls in Pakistan can be married as early as 13 years; yet she claimed she told her brothers in mid-2012 that she did not want to marry [Cousin A] but even then, they did not force her to marry him (and she did not marry [Cousin A] in the next 18 months before she left Pakistan. Further, as put to the applicant, she was not prevented from studying at university, being independent, and working in a [specified agency], nor from living away from home while unmarried.

    ·     The Tribunal had concerns with her evidence about being forced to marry [Cousin A]. While she told the Tribunal she was forced to stop working in the [agency] in March 2013 by her brothers so that she could marry [Cousin A], this was undermined by her claim in her student visa application form signed in September 2013 showing that she was still working at the [agency]. Further, she claimed that her brothers only decided in October 2013[10] to arrange for her marriage to [Cousin A] to occur in November 2013. 

    ·     Further, the applicant told the Tribunal that her brothers decided to make her marry in November 2013 because she had started living at her sister [Sister B’s] house. She then said however that she moved into [Sister B’s] house in August 2010 when she started work for the [specified business]. The Tribunal put to her that she had just said she moved into [Sister B’s] house in 2013 which made her brothers decide to marry her off to [Cousin A]; which was inconsistent with her claim to have moved there in August 2010. The applicant did not offer a credible explanation for the inconsistency.

    ·     Further, the applicant made a new claim at hearing that her sister [Sister B] was threatened by [Cousin A’s] family. [Sister B] was accused of helping the applicant to run away and they told her that they would kill the applicant if she returns. [Sister B] had to stop going to the [agency] from 2016 and she had to leave her house and could not go outside. The Tribunal asked whether [Sister B] experienced any harm and the applicant said no. The Tribunal put to her that this was difficult to understand given [Cousin A’s] family are prepared to actually murder the applicant; why would they not harm the sister who had helped the applicant escape. And further the Tribunal noted that it took [Sister B] 2 years after experiencing threats to stop going to work and to move home. The Tribunal put to her that this was difficult to understand. The applicant was not able to offer a credible explanation for these concerns nor could she explain to the Tribunal why this new claim, that her sister [Sister B] was receiving threats that the applicant would be killed, from [Cousin A] and his father, was not in her correcting statement of 25 June 2015. The Tribunal considers that if her sister had been receiving such threats, she would have mentioned this in her correcting statement. The Tribunal does not accept that claim.

    ·     The Tribunal also considered that her evidence about [Mr A] wanting to kill her was not credible. She told the Tribunal that the last contact she had with him was in June 2015 when he threatened her because his visa was cancelled. However when the Tribunal asked her about the conversation, her evidence continued to develop, which undermined her credibility. When asked if she went to the police in Australia about such threats, she said no. The Tribunal noted that she has been in Australia for years after this and nothing has happened. She suggested that he may have returned to Pakistan but she claimed she did not actually know where he was; nor did she suggest that he had ever made contact with her again. The Tribunal is not prepared to accept that she was threatened as claimed by [Mr A].

    ·     The Tribunal put to the applicant that she claims that her brothers will want to kill her if she returns, but they had plenty of time to do that (and to force her to get married to her cousin) after they had seen her in a travel consultant’s office in April 2013. The applicant said that her family did not think she would have the audacity to leave. The Tribunal considered that, if the brothers objected to her lack of co-operation, her independence, and her acting in accordance with her own wishes (which she claims they did), they would have organised the marriage to [Cousin A] as soon as possible. The Tribunal does not accept that there was any proposed marriage to [Cousin A].

    ·     The Tribunal also had concerns with the claim that [Mr B’s] family or his wife’s family want to hurt the applicant. She claimed that [Mr B] made his parents aware in December 2012 that he wants to marry her and his parents disagreed. The Tribunal put to her that if this is the reason why they wanted to harm her, they had a long period of time, between December 2012 and November 2014 when she left Pakistan, for them to harm her, yet they did not do so. In response she said that [Mr B] never told them where she lived and his family lives in Hafizabad and she lives in Lahore which is a drive of about 3-and-a-half hours. The Tribunal considered that this period of time, before she left, while the applicant was still in Pakistan and [Mr B] was still in a relationship with her, would have been the time that his family and his wife’s family would have come after her if they intended to do so. The Tribunal is not satisfied that the applicant’s claim is true.

    [10] Her statement indicates that as a result of this she left home in late October 2013

1. The Tribunal’s concerns were heightened because the applicant gave evidence at hearing that she has “told the truth wherever she goes”. This assertion undermines her explanation provided in writing in her statement to the Tribunal that she admits that she provided incorrect information to obtain a student visa while offshore. She states that she did this to protect herself. The Tribunal accepts that people in need of protection will sometimes be required to tell untruths to escape. This applicant, however, continues to maintain that she always tells the truth, even when recently admitting to telling untruths. The Tribunal does not accept her explanation that she told untruths to protect herself while offshore when preparing for her student visa application which was lodged in September 2013.

2. She also claimed in that statement that she was not in a proper mind when initially applying for protection because of fear and she was a single woman experiencing discomfort while pregnant. She admits that there were “mistakes and inconsistencies”. She states that when one admits a mistake and comes clean, they should not continue to face issues. While the Tribunal accepts that people can make mistakes and come clean, this applicant however later maintained the same “mistake” when applying for financial support to the Red Cross. Her claim that [Mr B] provided her with money indicates that she was also prepared to deceive her friend who was financially supporting her, as her friend was of the belief that, having regard to the story that the applicant had told her, there was no way that [Mr B] would have provided her with money. The Tribunal does not accept that this applicant made a mistake and then “came clean”. 

3. In summary, the Tribunal considers that the applicant is not a witness of truth and she is prepared to continually tell untruths and fabricate evidence to obtain the outcome she desires.

   Corroborative evidence 

4. Documents: The Tribunal is not prepared to accept any of the documents from Pakistan provided by the applicant, including the marriage certificate to [Mr B], WhatsApp messages she claims are between her and [Mr B], and letters claimed to be from her relatives in Pakistan confirming that the applicant engaged in a love marriage with [Mr B], and that they cannot support the applicant if she returns home. It is of interest that the sister [Sister B] also provided a letter for her student visa application where she supported the applicant’s student visa claims (that the applicant herself has now resiled from). Although the Family Court in Australia appear to have accepted that the marriage certificate between the applicant and [Mr A] was genuine, the Tribunal does not accept that this marriage was genuinely entered into. The Tribunal notes that fraudulent documents are available, and it considers that the applicant has very limited credibility.

5. Psychological reports: The Tribunal has considered the 2 psychological reports. The first report of [Doctor A], dated 26 August 2015, stated that the applicant suffers from mixed anxiety and depression that is being treated by cognitive behaviour therapy. The second was dated 4 May 2021. He does not state how often he has seen her since the first report in 2015. He diagnosed her with major depressive disorder and generalised anxiety disorder. He said that she informed him she faces sexual assault and torture and that she genuinely believes she will be killed if she returns. He is of the opinion that her conditions are associated with her fears of returning home and that her conditions will abate if she does not have to return to Pakistan.

6. The Tribunal is prepared to accept that she has the conditions outlined by the psychologist. It is also prepared to accept that she has some concerns about returning home (although it does not accept what, she claims in these proceedings, and to the psychologist, will happen to her and the reasons why).

7. [Roommate A]: The applicant provided a statement from [Roommate A] who stated that she lived with the applicant from November 2014 until the witness went back to Pakistan in January 2017. In the statement she provided details about the applicant’s claims and all the persons from whom she claims to fear harm. The witness attended before the Tribunal as a witness (by phone).

8. The delegate did not find the written evidence of [Roommate A] to be persuasive and considered it inconsistent. The Tribunal found the written evidence to be much more detailed than her knowledge at hearing (for example at hearing she did not know the surname of [Mr B], she called him [name variant], and she did not repeat the written claim at hearing that she had met him in Pakistan). The Tribunal considers that she may have received assistance from the applicant in writing it, and thus the Tribunal gives it little weight.

9. Concerning her oral evidence, the Tribunal considered the witness to be open in her evidence, although much of her knowledge appeared to be sourced from other people. The Tribunal notes that the witness arrived in Australia with a particular visa and after that then applied for another visa (not protection), returning home to Pakistan when that application was not successful. The Tribunal is not aware of any adverse issues with [Roommate A’s] own dealings with the Department (and the delegate did not suggest any). 

10. The witness told the Tribunal that when living with the applicant, she told her the whole story about her husband. She said that when she returned to Lahore [in] January 2017 she was worried about the applicant so she talked to the applicant’s sisters who know about the situation in Pakistan and they were of the view the brothers were angry with the applicant and they will kill her if she returns because she didn’t marry her cousin, instead she entered a love marriage.

11. The witness told the Tribunal that as far as she was aware her husband did not contact the applicant while she was in Australia and he did not give her money: “no, never”. The applicant borrowed money from the witness on and off. The Tribunal notes that the applicant claimed that she did have contact with her husband and that she asked him for, and he gave her, money. The Tribunal considers that this indicates that the witness does not have full knowledge of the applicant’s situation, and that the applicant has chosen to tell the witness what she wanted her to know. The Tribunal is prepared to accept that the witness contacted the sisters who made that claim about the brothers, but it does not give this weight as it does not consider that the sisters are independent.

12. The Tribunal thus accepts that the witness was told things by the applicant and her sisters. This does not mean that what she was told was true. The Tribunal accepts that the witness believes that the applicant does not have a husband in Pakistan who can support her, and that the applicant has concerns about returning to Pakistan as a single mother with her child. The Tribunal is prepared to accept that the witness ascertained this from her observations of and conversations with the applicant. The Tribunal gives this belief of the witness some weight.

    Findings on the applicant’s claims

13. On the basis of the adverse credibility finding the Tribunal does not accept that the applicant was born into a traditional conservative family. It considers that she and her sisters were educated and worked and that this was not subject to objection by her family. It finds that she is from a middle-class family, and not from a rural area. It does not accept that she was beaten or threatened to be harmed or killed for any of the reasons claimed, nor by any of the claimed perpetrators. It does not accept that anyone else (such as her sister) was harmed because of the applicant’s actions.

14. The Tribunal does not accept that the applicant was meant to enter into a forced marriage with [Cousin A], nor does it accept that she faces a forced marriage in the future, whether it be to her cousin or anyone else.

15. The Tribunal accepts that the child is her child. As to who is the father of the child, that is not clear. She does not claim that [Mr A] is the father of the child, she claims instead that their marriage was false/non-existent. In this regard, the Tribunal has considered the obstetric discharge summary that the applicant provided which does not mention [Mr A’s] presence or involvement with the birth of the child. The Tribunal finds that [Mr A] is not the father of the child.

16. The Tribunal does not accept that she had a genuine marriage to [Mr A], and it finds that she was aware of the false claims created and made in order to come to Australia and that she created/supported and maintained those claims, including the false marriage certificate. It does not accept that [Mr A] threatened her nor that she faces any harm from him or owed him any money nor does it accept that she faces a real chance or risk of harm in Pakistan from any matters relating to the organisation of her student visa and travel to Australia.

17. The applicant claimed that she had an affair then a love marriage with [Mr B] and that he is the father of her child. She claimed at hearing that this relationship stopped at the end of 2015, when he said to her that he doesn’t want to upset his marriage or his family, he doesn’t want to make his children suffer and he can’t take responsibility for her and the child. The Tribunal does not accept her claims including that she entered into a love marriage with [Mr B]. The Tribunal is not satisfied about who is the father of the child. It accepts that the applicant registered the child’s birth in Australia, 2 months after the birth, and that in doing so she asserted that his father is [Mr B], and that she and [Mr B] were married [in] November 2013. It accepts that she has recorded the child’s surname as [that of Mr B]. The Tribunal gives the assertions that the applicant made to the Registry of Births Deaths and Marriages no weight, as she is not a credible witness and is prepared to take any actions to support her claims. Without more credible evidence such as DNA testing (which the Tribunal has not requested as the claimed father is in Pakistan and the applicant claims she is not speaking with him and that he has abandoned her and the child), the Tribunal does not accept the assertions that the father of the child is [Mr B]. 

18. The applicant stated in her protection visa application form that she came to Australia to study; the Tribunal does not accept that she ever had this intention. It finds that she told untruths offshore (about how she intended to return to Pakistan) because she wanted to migrate to Australia.

19. The Tribunal notes that at the time the applicant was preparing her fraudulent documents including a false marriage to support a student visa application (at least from early 2013) and when she was granted a student visa (February 2014), she was not pregnant with her (current) child. Although she claims that in January 2014 she was pregnant with an earlier child (that she aborted in February 2014), the applicant did not claim in her statement that a pregnancy was the reason why she made the false student visa application, and the Tribunal does not accept that this was the reason why she made her offshore student visa application.  The Tribunal has not accepted that, at the time she was preparing for and providing false information to the Department in order to obtain a student visa, that she actually believed that she had a need to leave Pakistan due to a fear of harm. The Tribunal does not accept that the applicant considered that she needed to leave Pakistan for her protection when she applied for the offshore visa.

20. The Tribunal had concerns that the applicant’s visa was granted in February 2014 but she delayed in leaving until November 2014. After the hearing the agent produced email correspondence indicating that the email advising of the grant of the visa was sent to the agent, not directly to the applicant. The Tribunal is prepared to accept her assertion that she did not delay in leaving, and to accept that she only found out on 22 October 2014 that her visa had been granted. The Tribunal accepts that by this time, the applicant was pregnant, and she wanted to leave Pakistan.

21. The Tribunal has carefully considered whether she would be returning to Pakistan as a single mother. The applicant is so lacking in credibility that she has even provided inconsistent information as to the number of previous pregnancies she has had. While claiming in her statement that she had been forced to have one termination, and had a second pregnancy, thus 2 pregnancies in total, she told the hospital as recorded in the obstetrics notes that she had had 2 prior pregnancies (not successful) in addition to her then current pregnancy, thus 3 pregnancies in total. The Tribunal considers it likely that the applicant would have been more honest with the hospital than she has been in these proceedings, and thus it considers that it is likely that she had had 2 previous pregnancies (as well as the pregnancy leading to her current child). If the other 2 pregnancies were terminated, this supports a finding that she may have become pregnant on a number of occasions out of wedlock to a man or men with whom she had sexual encounters. The Tribunal is prepared to accept that this is a real possibility in relation to the latest pregnancy, and that she did not have a relationship with the father of the child in Pakistan. It is prepared to accept that this is the reason she fears harm upon return to Pakistan.

22. While the Tribunal finds that she told untruths about the number of her siblings (when comparing her student visa application and her protection visa application) it is prepared to accept that she has at least one brother (as set out in her student visa application) and that her father is deceased (as claimed in both applications). The Tribunal considers that the attitude of the male members of her family has been fairly open in the past: she has not been prevented, as an unmarried female, from seeking higher education in Pakistan, working, living away from home with her sister[11] and to travel alone to Australia (she did not suggest that her family was aware of her false marriage).

    [11] At times she claimed she lived with [Sister A], at other times with [Sister B], and also, which is not accepted, she claimed she lived with [Mr B]

23. However, the Tribunal accepts that her circumstances have changed and that she is a single mother having given birth to a child as a result of a sexual encounter (and outside of a marital relationship). The Tribunal has considered the country information indicating that to have sexual relations outside of marriage is taboo (for women) and that breaches of such mores are taken seriously.

24. Retired Justice Haziqul Khairi, former chief justice of the Federal Shariat Court and a former judge of the Sindh High Court, stated in 2017 that ‘… 1,600 women had been accused of adultery with not a single male accused…’, even though the men were equal partners in the act.[12]

    [12] ‘Country Policy and Information Note – Pakistan: Women fearing gender-based violence’, UK Home Office,

    November 2022.

25. The UK Home Office report from November 2022, issued after the hearing in this matter, states:

    ‘Honour’ crimes, including murder, where the perpetrators seek to avenge the dishonour brought upon the family, are committed against some women accused of adultery, sexual relations outside of marriage, marrying without parental consent (love marriage) or because their dress or behaviour is deemed immodest. An allegation or suspicion of so-called sexual misconduct can be enough to perpetrate an ‘honour’ crime (which includes killings as well as other forms of harm).

    As sexual relations outside of marriage are strictly prohibited under the 1979 Hudood Ordinances, having a child outside of marriage can cause social stigma and such children were referred to as ‘harami’, meaning ‘forbidden under Islam’, according to Anwar Kazmi, an official from the welfare agency, the Edhi Foundation, interviewed by Al Jazeera in 2014.[13]

    [13] ‘Country Policy and Information Note – Pakistan: Women fearing gender-based violence’, UK Home Office,

    November 2022.

26. The Tribunal accepts that if the male members of her family (her brother and male members of her extended family) knew about her pregnancy out of wedlock, there is a real chance that this would not be seen in a positive light and that she would be exiled away from the family, and that her sisters would not be permitted to assist her nor her child born out of wedlock[14]. The Tribunal accepts the psychological evidence that the applicant suffers from major depressive disorder and generalised anxiety, and it considers that if she moved away from her family home and had to support herself and her child and obtain work, the attitude of her family and society would be particularly difficult for her to accept.

    [14] It is asserted that her mother has passed away and thus cannot help her; for the purposes of these proceedings only the Tribunal will accept the death certificate.

27. The Tribunal has considered whether she would face a real chance of serious harm for one of the specified reasons if she remained within her home area of Lahore, albeit not in the family home, noting that she claims to have resided away from her family home while working.

    Member of a particular social group as an unmarried mother

28. The applicant claims to fear harm as the member of a particular social group of unmarried mothers (as well as others in the agent’s submissions[15] that the Tribunal has not accepted).

    [15] 14 May 2021, page 3.

29. The 2022 DFAT Report, issued after the hearing in this matter, notes:

    Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.

    …

    Women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) restricts many women’s personal, social and economic activities outside the home. While women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom, conservative rural communities are much stricter. There are reports of widespread sexual harassment of women and girls in public places, schools and universities. Some, mostly wealthy, Pakistani women have attained senior positions in public life, but their experience is not representative of the general population.

    Rates of gender-based violence are high. The Pakistan Demographic and Health Survey 2017-18 found 27.6 per cent of ever-partnered women aged 15-49 had experienced physical violence, mostly at the hands of their husbands. NGOs claim the actual prevalence is much higher. NGOs and government officials report domestic violence has risen sharply during COVID-19.

    Gender-based violence often goes unreported due to stigma and a lack of privacy for victims, even when they are wealthy and well-connected. Victims of rape often avoid reporting for fear they will be blamed or killed for ‘dishonouring’ their family, and because attending police stations may put them at risk of further violence. Extremely low conviction rates also discourage reporting of rape and other forms of GBV, as does a lack of female police officers. Domestic violence is commonly seen as a private family issue, and police are often reluctant to intervene. Federal and provincial governments have tried to improve official responses to gender-based violence, including through establishing GBV courts and women’s police stations, available in some major cities. In May 2021, police opened a Gender Protection Unit with a 24-hour hotline in Islamabad, which handled more than 500 complaints in its first three months.

    So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killing can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression.

    DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support

1. The UK Home Office report states:

   While some women face sexual and gender-based violence, predominantly from family members, in general, women are not at real risk of persecution or serious harm from non-state actors. Furthermore, the level of societal discrimination is not likely to be sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm. Each case must be considered on its own merits with the onus on the person to demonstrate that they would be at real risk from non-state actors[16].

   [16] ‘Country Policy and Information Note – Pakistan: Women fearing gender-based violence’, UK Home Office,

   November 2022

2. The report also states, however, concerning single women:

   According to an August 2021 article on the situation for single women, by Lahore-based journalist and writer, Nushmiya Sukhera: ‘There seems to be no space in Pakistani culture for women living alone. The common and expected arc of a woman’s life consists of first living in her parents’ home and moving out only when moving into the home of her husband and his family. Women who seek independence are often thought to be bringing shame upon the family by doing so and are severely criticized by relatives – close and distant alike. But in recent years, the country has seen a change in which more women are choosing to live independently, whether it’s by relocating to a different city for work, leaving abusive domestic situations, or even simply wanting to dip their toes in some form of liberation in a country determined to shackle them in one way or another. However, for most of these women, the decision to live independently brings with it its own set of challenges. They often have to put themselves in potentially dangerous situations in order to live a life devoid of control and confinement….. The same report noted that ‘According to Mazhar Lodhi, a real estate agent based in Islamabad, finding places for women is fairly easy. “They can find accommodations in hostels, apartments and even portions or rooms in houses,” he said.’ Similarly, Nayab Gohar Jan, an activist based in Lahore, said that there were ‘hostels accommodating single women…’ Despite this, Sukhera heard from women who had lived or were living independently, some of whom spoke of their personal security concerns as well as the moral policing and harassment they faced from landlords or male neighbours.

   Lawyer Rafia Zakaria stated in an article published by Dawn in January 2022 that ‘Grown women who are not under the wing of a husband are automatically considered social pariahs and their morals declared compromised. Even in 2022, it is difficult for a single woman to rent or lease a home in many areas in the country. Faced with such realities, most girls just say “yes” [to marriage].

   A research study on post-shelter lives of women survivors of violence by Rozan, an Islamabad-based NGO, published November 2018, noted that: ‘Depending upon the trajectory of their post shelter lives, many [women] still face violence or the threat of violence, severe stigma for living without male members or as a divorced woman as well as considerable distress as consequence of years of abuse and loss of support from family members. Many also face financial constraints and practical challenges of living such as safe housing… Many try to dissociate, at least visibly, with the shelter and lie to neighbours and landlords that they have brothers or fathers earning abroad. Single and younger women reported this more, and often shared a heightened sense of insecurity and vulnerability as a lone woman, without male members in their life.’

   The Legal Aid Society (LAS) noted in 2020 that ‘If a woman leaves her husband without the support of her natal family, unless she is wealthy and educated, there are very few options for her to survive and to manage her children.

3. Concerning sexual and gender-based violence, the report refers to a report from The Legal Aid Society (LAS), a not-for-profit NGO aiming to reduce challenges in accessing justice for marginalised and underprivileged communities, which stated:

   In Pakistan, there is a consensus on the growing rates of sexual and gender-based violence (SGBV). SGBV is a nationwide epidemic with alarmingly low conviction rates. While SGBV is largely prevalent in the country, due to shame and honor, cases of SGBV are rarely reported to save the family’s name and if reported, solved through out of court settlements. Patriarchal socio-cultural norms and a gender insensitive criminal justice system (CJS) couple to give low convictions rates due to approaches that blame the victim, deploy weak investigation and prosecution procedures, and long protracted trials in uncomfortable environments. As a result, one is left with a system that does nothing to provide the sexual assault survivors with justice and only further compounds their issues resulting in an extremely unequal society.

4. Concerning attitudes to women working, the UK Home Office report states:

   In a household survey using data collected in February 2021 from a sample size of 852 male and 179 female respondents, the Center for Global Development (CGD) found that 43% of men think women should not work outside the home and, although half of men thought women should be allowed to work, 28% of those did not think a woman could do the same job as a man. The CGD also cited the 2019 Pakistan Social and Living Standards Measurement (PSLM) survey, in which it was found that 40% of women needed permission from a family member to seek or remain in paid employment.

5. The UK Home Office report refers to a Bill recently introduced relating to workplace harassment. Although some figures are provided, it is suggested that these are not reliable, and the report refers to comments from the Sustainable Social Development Organisation that: “In a culture w[h]ere talking about such issue are [sic] already taboo and surrounded by the conspiracy of silence, many cases of such nature go unreported…” The Tribunal accepts that, given there is harassment of women in public places, and given the attitudes towards unmarried mothers, there is a chance that the applicant would face harassment in the workplace as an unmarried mother without family support, living alone and having to make arrangements to care for her son when he is not at school.

6. Concerning assistance available to women, the Tribunal notes that the January 2022 DFAT report states that ‘State-run women’s shelters (darul aman) require a court order to enter and leave, and are described as having “prison-like” conditions. Private and NGO-run shelters exist, but they are unable to meet demand. Families often pressure victims to return to their abusers; in some cases victims are lured into returning and are killed”.

7. The Tribunal has considered the above and it finds that the applicant will be alone, with [an age]-year-old son, without a husband, without family support, suffering from depressive and anxiety conditions, seeking to find accommodation and work and needing to care for and be responsible for her child outside of school hours. The Tribunal accepts that, in living independently, she is vulnerable and faces a real chance of serious harm in the form of sexual harassment, sexual abuse, harassment and discrimination. The Tribunal accepts that the applicant meets both the subjective requirement in s 5J(1)(a) and the objective requirement in s 5J(1)(b).

8. Section 5L states that a person is to be treated as a member of a particular social group other than 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.

9. The Tribunal accepts that being an unmarried mother is a characteristic that is shared across the group of ‘unmarried mothers’, that the applicant shares this characteristic, that it is innate to her being and that the characteristic is not fear of persecution.

10. The Tribunal has also considered whether the applicant could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution, other than the modifications set out in s 5J(3)(a)–(c). The Tribunal has accepted that there are no relatives she can reside with, and she should not be expected to marry someone for protection (s 5J(3)). The Tribunal is not satisfied that the applicant could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution.

11. The Tribunal accepts that the applicant’s membership of the particular social group of unmarried mothers is the essential and significant reason for the feared persecution (s 5J(4)(a)). The Tribunal accepts that the persecution involves systematic and discriminatory conduct: s 5J(4)(c) and that it involves serious harm: s 5J(4)(b).

12. The Tribunal has considered whether effective protection measures are available to the applicant: s 5J(2), s 5LA. The country information referred to above indicates that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence, that attending police stations may put them at risk of further violence, and that although sexual and gender-based violence and discrimination is prevalent, there are “alarmingly low conviction rates”.

13. The Tribunal has considered whether the real chance of persecution relates to all areas of Pakistan: s 5J(1)(c). While the evidence indicates that the risk and level of harm may be more significant in rural areas, the country evidence indicates that the attitudes towards women (and single mothers) are pervasive throughout the country. Thus, while the applicant is middle class and educated and could move to cities perhaps considered safer, she will remain a vulnerable, unmarried mother of [an age]-year-old child, alone, who has to support herself and her child, facing a real chance of stigmatisation, sexual harassment, sexual abuse, harassment and discrimination, amounting to the level of serious harm.

    CONCLUSION

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

15. The Tribunal is satisfied that her child is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

16. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Christine Cody
    Member

    ANNEXURE A- CRITERIA FOR A PROTECTION VISA

17. 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.

18. 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.

19. 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).

20. 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.

21. 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

22. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    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.

    …