1714527 (Refugee)

1714527 (Refugee) [2023] AATA 2680 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Numair Malik
CASE NUMBER:  1714527
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Christine Cody
DATE:29 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 March 2023 at 11:10am

CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnicity – Pashtun – religion – Sunni Muslim –particular social group – women in Pakistan – domestic violence – serious harm - physical and verbal abuse – abuse and attacks for transfer of inheritance property – husband taken second wife – no effective protection measures available to applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BZAFM v MIBP [2015] FCAFC 41
FCS17 v MHA (2020) 276 FCR 644
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZTEQ v MIBP (2015) 229 FCR 497
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

The applicant is a [age deleted] woman who left Pakistan on [in] December 2016 legally, and arrived in Australia on [in] December 2016, as the holder of a Subclass FA-600 Visitor visa, issued in Islamabad, Pakistan, on 15 December 2016. She used her passport issued in Pakistan [in] February 2015,. She applied for a permanent Protection visa (Subclass XA‑866) on 16 March 2017 and was granted a Bridging visa A (WA-010) on 20 March 2017. Her initial application for a protection visa was found to be invalid on 3 April 2017 and she reapplied on 10 April 2017. On 18 April 2017, the applicant was granted a Bridging visa C (WC‑030).[1]
[1] Sourced form passport stamps and the delegate’s decision record
On 13 June 2017 a delegate of the Minister for Immigration and Border Protection made a decision refusing to grant the applicant a permanent protection visa (Subclass XA-866) under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The Tribunal received submissions and documents and held a hearing. At the end of the hearing the Tribunal indicated to the applicant that it would send an s 424A letter due to its concerns. The Tribunal has concerns with the reliability of the applicant’s evidence, as well as concerns about her son’s evidence. However, the Tribunal considers that there is enough consistent evidence between them to support the existence of a kernel of truth in aspects of the applicant’s claims, 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. It has therefore not sent out an s 424A letter but has decided to remit the matter for reconsideration.
Department file[2]
[2] There are no non-disclosure certificates attached to the Department file.
The applicant provided forms in support of her protection visa application, her statement dated 15 March 2017, and a certified copy of her Pakistan passport.
Her background from her application form is summarised as follows:
·     The applicant was born in [year] in Lahore, Punjab, Pakistan. She is a citizen of Pakistan and does not have the right to reside in or enter any other country. She can speak Urdu and Punjabi and identifies as being a part of the Punjabi ethnic group and Sunni Muslim religion.
·     She married her husband, [name deleted], in [year deleted] in Lahore. They had 2 sons ([Son 1] born in [year deleted] and [Son 2] born in [year deleted]) and one [daughter] (born in [year deleted]).
·     She resided at 3 addresses in Pakistan:
o   [year deleted]–May 1999, a house in[City 1], Lahore
o   May 1999–August 2013, a house in [District 1], Lahore
o   August 2013–December 2016, a house in[Town 1], Lahore (“[House 1]”).
·     The applicant’s husband, eldest son and daughter reside in Pakistan. The youngest son is a student and resides in[Town 2], NSW, Australia, with the applicant. She is in contact with her children by Viber every day and has less frequent video calls with her children.
·     She has no education and has never been employed.
·     Her husband lives in house [address deleted].
·     The children live at the[House 1].
The applicant’s claims from her application form and statement are summarised as follows:
·     Her background is Sunni. Her husband converted to Shia Islam when he married another woman, who was Shia, in 2011. She and her husband were not divorced when he entered the second marriage. He kept this marriage “secret”.
· She was informed about this “secret” marriage by her relatives after 2 years [2013]. Once her husband was aware that she knew about this, he “made her life very difficult”. The differences between them worsened, and he pressured her to become a Shia. She refused however to change her religion.
·     She inherited property from her parents in 2013, and it was registered in her name in August 2013. The property has increased in value and her husband insists the property be transferred to his sole name. However, this property is the only financial asset her children can inherit from her, and she does not want to transfer it to him.
·     Her husband has threatened to kill her numerous times because of her disobedience to him concerning converting to the Shia faith and because of her refusal to transfer the property to him.
·     Her husband visits her 2–3 times a month and she fears him because he is angry and bitter, and his constant yelling makes it “impossible to have a rational conversation” with him.
·     The applicant’s husband increasingly threatens her life when she refuses to transfer her property or convert religion.
·     She fears that she will eventually be convinced to transfer the property to her husband. She fears for her life and liberty.
·     She suffered harm in Pakistan, did not try to seek help and did not try to move. She does not believe that the authorities will protect her if she returns. The Pakistani authorities are not effective in dealing with domestic violence and religious disputes. Particularly because she is a woman, she is unable to relocate safely to other areas of Pakistan without assistance from her family.
The interview
The applicant attended an interview with the delegate on 5 June 2017. Her agent was present and the interview was conducted with the assistance of an Urdu interpreter. Some of her evidence included:
·     The applicant made an additional claim that she wants to remain in Australia because of her old age (at that time she was [age deleted] years old).
·     In Pakistan she confirmed that she has her children (who live together in a house in Lahore and are unmarried) and a brother and sisters. She communicates with her children in Pakistan once or twice a day and does not communicate regularly with her siblings. Her siblings live in Lahore. Her parents are deceased. Her mother died when she was 2.
·     When asked if she was ever happy in her marriage she said no, she experienced abuse and “cruelty”. After marrying the Shia woman, he spent most of his time with her, while threatening the applicant with beatings. She was afraid of her husband.
·     Her father helped her with the children; he was like their father figure. Her husband did not treat the applicant well (he would beat her and place restrictions on her) and did not pay anything towards the children’s upbringing (her father did).
·     She suspected her husband had another wife when he stopped coming home prior to 2011. She asked her husband where he was and where he was sleeping many times during their 30‑year marriage, but now she has had enough, and he threatens to beat her.
·     When asked how she found out that her husband had taken another wife and when, she said that her husband told her sometime in 2011 or shortly after. When it was put to her that her husband had hid the other marriage from her for 2 years, she agreed. She said she is unsure when he got married for the second time but it was around 2011. When asked for her reaction she said that she cried and became quiet when she found out.
·     He never used to sleep at home but came home around once a month to fight with applicant’s son for money. He did not sleep at home from 2011 onwards. He has lived with his second wife since 2011.
·     Her husband comes and goes from her house, about 3–4 times a month. He threatens to beat the applicant on these occasions.
·     Before 2013 she lived in a home of her own (from 1999 to 2013). She had to sell that house due to finances then she rented for a short time.
·     The children have no relationship with their father but they are afraid of him.
·     The delegate noted that her father died in 2009 and asked why it took so long for the property to be given to her, and she said in Pakistan that everything goes to the eldest son (her brother) and that her brother gave it to her sometime later (as he saw that she was in a bad situation with her husband). The whole house was given to her and is in her name. Her husband started to pressure her about transferring the property to him soon after she received it in 2013.
·     When asked why her husband chose to remain married to her but not look after her she said that she did not ask for a divorce because it would be shameful, she was beaten up regularly, and he would not divorce unless he got the property given to her by her brother.
·     When asked what type of things her husband says to her she said that he was not a good man.
·     When asked if she ever went to the police she said that her eldest brother spoke to her husband about the abuse, and she went to the mayor many times to talk about it. Her husband promised to stop but never followed through.
·     When asked how she supported herself financially in Pakistan she said that her eldest son supported her through his business; he paid for her trip to Australia.
·     When asked why she stayed in Pakistan for 3 years (since 2013) if the situation was so bad for her, she said she came to Australia to see her son and she intended to return but while she was here she heard from her children in Pakistan that her husband intended not to let her live.
·     From the time he got married to another woman she had been afraid for her life. When asked why she did not come to Australia earlier she said that her son has only been here for 2 years and could not come earlier due to her other children in Pakistan.
·     Her husband has not contacted her or her son while they have been in Australia.
·     The delegate put to the applicant that according to her visitor visa application, her husband was stated as an incentive for her to return to Pakistan. She responded “no, I did not write this”. She said that her family was the reason why she had intended to return to Pakistan.
·     The delegate said that he did not dispute that she has a difficult relationship with her husband, but she has family support and a home in Pakistan, so he asked what happened exactly to make her not want to return. The delegate asked the applicant to pinpoint exactly when she realised that she could not return, and what it was that had created this situation for her. She said that she had heard from home that they were going to take her property away from her, and that her life was in danger. She said that she received this information one and a half months after being in Australia.
The applicant said she was uneducated, she is under pressure and is fasting, and cannot remember everything so clearly.
After the interview the agent forwarded an email dated 8 June 2017 referring to the interview and attaching a transfer letter from the Lahore Development Authority transferring a property title to the applicant from [name deleted] dated [in] August 2013. This was in English and was sent to the agent from her son. The delegate wrote to the agent to check that it was in English and the agent said yes, that this is how he had received it.
The delegate’s decision
The delegate referred to reporting by the Department of Foreign Affairs and Trade (DFAT) in 2016 that up to 5% of Lahore’s Shia population might marry Sunnis. They also note that when interfaith marriages occur, one partner generally undergoes religious conversion. As of 2016, however, there are no credible reports of forced conversion. When asked what her husband would say to her to pressure her to become Shia, the applicant began to talk about her husband pressuring her in regards to her property. Therefore, the delegate did not find that the applicant's husband pressured her to become Shia.
When the applicant was asked if she had ever sought help from authorities in relation to her husband, she only spoke of seeking assistance from an official of the government before he married his second wife. However, she had said that since 2013, he had been threatening her to transfer her property to his name. The delegate did not find it credible that the applicant's husband would come to her house and threaten her on a regular basis over a 3‑year time period without her seeking assistance, considering she had sought assistance in the past.
The delegate acknowledged that the applicant said that she was uneducated, and considered that this may have affected her ability to understand some questions at interview, noting that some questions had to be put to her several times before she answered the question.
The delegate accepted that the applicant had a difficult relationship with her husband and that he took a second wife, but it was not accepted that her life was in danger. The delegate accepted that her husband beat the applicant when they were living together. The delegate referred to an article from the Immigration and Refugee Board of Canada which discussed the existence of polygamy in Pakistan and said that, although, legally, husbands should ask their wives’ permission to take a second wife, there are many instances in which men married without their first wife’s permission. The delegate noted that the applicant has not lived with her husband since 2011 and her husband has remarried. The applicant’s husband has not harmed her recently.
The delegate did not accept that the applicant’s husband has made threats against her life in recent years, and found the timing of these serious threats to be suspicious. While the applicant claims that her husband has been coming to her house and threatening her 3 to 4 times a month since 2013, she also said that her only intention in coming to Australia was to visit her son. She did not indicate that she was leaving Pakistan as a means to escape from her husband, and said that she always had planned to return. The delegate did not find it credible that her husband has been threatening her since 2013 but only made a serious threat which made her fear for her life once she came to Australia. The delegate found that if the applicant’s husband had intentions to harm her, he would have already done so.
Concerning her claim about her age, the delegate found that the applicant has a good family support system and the financial means to subsist in Pakistan, including financial support from her son. She was living in her own property with her 2 children. Her siblings live in the same city, and she has a good relationship with them. Her brother gave her the rights to her current property. She has one son in Australia, but he is on a student visa. She has not indicated that she has any other family members in Australia who would be able to care for her once her son returns to Pakistan. Therefore, the delegate finds that she has a much stronger support system in Pakistan.
Although accepting that the applicant has suffered in the past due to her relationship with her husband, the delegate found that she has exaggerated the current situation with him in order to strengthen her claims. The delegate was not satisfied that she has a genuine fear of harm in Pakistan.
The Tribunal
The applicant applied for a review to the Tribunal on 6 July 2017. She was represented by her registered migration agent, and she subsequently changed agents in September 2021.
The applicant was invited to a hearing on 26 April 2022 and, despite the Practice Direction requesting that all submissions and documents be provided 7 days before the hearing, the submissions (dated 25 April 2022) were not received by the member until after the hearing had started.
The submissions dated 25 April 2022 repeated previous evidence (including from the delegate’s interview and decision record) and provided further information, including responses to the delegate’s consideration of her claims:
·     She has one brother and 2 sisters.[3] She also has 2 sons and one daughter. All of her children are unmarried.
·     The delegate’s concern about religion was referenced: noting that in her written claims she said that her husband had converted to Shia in 2011 but that at interview, she said that she was not sure if he had converted or not. It was submitted that the applicant is not educated and may have missed saying something at a particular point in time, but religious conversion is the main reason the applicant applied for protection in Australia.
·     Concerning the discrepancies, the applicant submitted that consideration must be given to the applicant’s age, education, and stress level considering the situation.
·     Regarding execution of the threats, and why her husband has not executed the threats for a period of time, the applicant said she was very carefully manipulating the situation to avoid her husband carrying out the threats. When the applicant came to Australia, her husband became even more violent, realising that the applicant had left the country and may not return. He threatened serious consequences for the applicant.
·     Reference was made to the Qur’an: In Islamic religion, a maximum of 4 wives are allowed subject to certain restrictions, and that this supported the applicant’s husband taking a second wife. It was stated that after his interfaith marriage to the second wife, he was “constantly forcing” the applicant to convert. The delegate was incorrect in stating that there are no credible reports of forced conversion since 2016, and reference was made to country information. The delegate was also incorrect in characterising this as a property dispute without taking into account religion.
·     The authorities in Pakistan are not effective when it comes to domestic violence and religious disputes. The applicant submits that authorities are unable to provide any protection because they consider it a family matter and interference is not required in such matters, as said in the United Kingdom (UK) Home Office report [2016] on women facing gender‑based harm and violence in Pakistan, which also notes that domestic violence is widespread and that police often considered these issues a private matter.
·     The applicant also cannot relocate to other areas of Pakistan because as a female she will not be safe without the assistance of her family. She has a good relationship with her siblings.
[3] Family registration certificate provided showing the applicant and her siblings
Reference was made to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Kirby J (dissenting in the outcome of the case) which noted that:
There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.[4]
[4] [2004] HCA 32.

It was thus submitted that consideration should be given to the effect of trauma and age upon a person’s ability to focus and concentrate and to recall distressing events. The Department’s internal policy suggests that as an example, a person can be so traumatised that at interview they will say anything that they think will advance their case. Doing so does not automatically undermine their credibility.
The hearing
The applicant appeared before the Tribunal on 26 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her son [Son 2]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The agent was also present.
The hearing occurred over an extended period of time, with numerous breaks. A number of factors contributed to this, including:
·     The applicant and agent said that she understood the interpreter if she spoke pure Urdu but the agent said that the interpreter was also speaking some Hindi. The interpreter said that she is Indian, speaking Urdu, whereas the applicant and her son are from Pakistan. After discussions it was agreed that the hearing would continue with this interpreter, and if the applicant did not understand she should immediately communicate this. The applicant did at times say that she did not understand what was being said and asked for it to be repeated/rephrased, which it was.
·     Although the hearing invitation requested that the Tribunal be informed of any proposed witnesses, none were advised. However, the applicant’s son attended and sought to be called as a witness. The Tribunal agreed to this, and although the son should have provided, 7 days in advance, a witness statement, the Tribunal instead took oral evidence from him.
·     After the hearing had been going for about one hour, the Tribunal member was provided for the first time with the submissions from the agent dated 25 April 2022.
·     The applicant would often not respond to the Tribunal’s concerns, or respond tangentially. The Tribunal took additional care to repeat the question, sometimes giving the applicant more than one opportunity, but she would often just repeat her non-responsive answer, or she would tell the Tribunal that she is not educated. The Tribunal had concerns that she was evasive, that she was not as uneducated as she claims, and that she may not be unable to read as she claims.
·     The applicant would stand up, turn and address the interpreter instead of the member, despite many reminders to address the member not the interpreter. She started asking personal questions of the interpreter. She was reminded a number of times about the role of the interpreter.
·     The hearing did not finish at the scheduled time and the interpreter had to leave. The Tribunal organised a telephone interpreter and the Tribunal was informed by that interpreter that the applicant started to “complain” about the first interpreter. The Tribunal put to the applicant that it had already asked her to say, at the time, if she had any difficulties with the (first) interpreter. The Tribunal does not accept that there were additional difficulties with the first interpreter other than those raised by her and resolved at the time.
The Tribunal was satisfied that the applicant was able to understand the questions and to give evidence and present arguments with both interpreters. While the Tribunal accords some leniency to the applicant, it was not satisfied that she is as uneducated as she claims nor that this can explain her inconsistent responses.
The applicant’s evidence included that she would never stay away from her children this long; she had wanted and planned to return but there had been more threats when she was here. She said that everything is in Pakistan, she wants to meet her children, she wants to go to God’s house and she has not been able to go there. She repeated that she wants to meet her children. When the Tribunal asked why she did not do so, she said that she is afraid there. When asked what she is afraid of, she said that she is just afraid if she goes back the same thing will happen. When the Tribunal asked what that was, she said that she just wants to be treated as they treat other people.
The son[Son 2], aged [age deleted] years, gave evidence in English (interpreted into Urdu for the applicant). Some of his evidence supported the evidence of the applicant; other parts did not. He told the Tribunal that he is the youngest son and his father did not spend time with them, he barely spent 2–3 days/month with them; instead his grandfather from his mother’s side and his mother’s brother looked after the children. His father would abuse and beat their mother a lot. His father was aware that his mother would receive a large inheritance and his father wanted her inheritance. From 2008/2009/ 2010 when the applicant’s father passed away things started getting worse and his father got married to a Shia woman.
Further discussion of the evidence at hearings is set out below.
CONSIDERATION OF CLAIMS
Country of reference
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.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection or whether she is a member 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
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.
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.
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).
As Kirby J observed in Dranichnikov v MIMA:[5]
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 …[6]
[5] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.
[6] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
At the hearings, the applicant was asked questions about her claims. Concerns arose about the reliability of her evidence and claims, for reasons including as follows.
Firstly, the Tribunal had concerns about the applicant’s evidence and the transfer document she produced relating to the[House 1].
The applicant was asked by the Tribunal when she first started living in the[House 1, and she said when her father found out that her husband was not behaving well, he took this house and gave it to her and that is when she started living in this house. She said that this occurred in about 2013 (her son [Son 1]was [age deleted] years old; he is now [age deleted] years which confirms this date). However, she then said that she lived in that house for 4–5 years before she left Pakistan; indicating that she lived in the [House 1] from about 2011/2012.
She also said that her father would sometimes come and live in the [House 1]with her; whenever her husband beat her and was not behaving well, her father would stay with her and then he would leave. When asked when that was, she said that she has stayed in Australia for 5 years and it was before that.
The Tribunal notes, however, that none of the above is consistent with her claim that her father died in 2009 and that she inherited the house from him.
A further concern arose because she claimed that her father was present at the “property office” (she could not offer a more precise name) when the property was transferred to her. She told the Tribunal that in order to transfer property, one needs to attend a property office and she had been to such an office when the owner sold the property to her father ([name deleted]). She said she could not recall the owner’s name. She said the payment was made by her father but the property was given to her. She then added that her brother ([name deleted]) was also there. She confirmed that she was present in the same room, with her brother and father, when the property was sold by the owner into her name, paid for by her father.
Her claim at hearing was somewhat supported by the transfer document she had produced to the delegate after the interview, which was a transfer letter issued by the Lahore Development Authority which states that [name deleted] sold the property to the applicant on 29 August 2013. However, her claim at hearing and the document, were inconsistent with her statement where she claims:
· that her father died in 2009: thus he could not have been present at a meeting where the property was sold to her from another owner in 2013; and
· that in 2013 she received the property as an inheritance from her parents’ estate and it was registered in her name on 29 August 2013.
Her claim at hearing was also inconsistent with her explanation at interview in response to the delegate’s questions. The delegate asked her why, if her father passed away in 2009, it took years for the property to be passed on to her. She said that in Pakistani law, all property is passed to the eldest son. However, as her brother saw that she was in a bad situation with her husband, he gave the property to her.
The Tribunal put to the applicant its concerns, including that she could not have been present with her father in the property office in 2013, with the property being transferred to her from a third party if her father had died in 2009.
She did not respond to the Tribunal’s concerns about her changing evidence, instead saying that as soon as she got married her husband used to say that her father was a very rich man and her father paid for all the expenses and he used to look after her and he always looked after her. The Tribunal put to her again that she has given evidence that she was present with her father and brother when the property was signed over to her but the document indicates this was in 2013.
The Tribunal again raised its concerns. She said that her father gave her the house but she doesn’t know what the interpreter is interpreting. She said that there was a lot of hardship for her and she does not understand well and she is not educated. The Tribunal did not find this to be a persuasive explanation for her changing evidence, and the Tribunal was not satisfied that there was an issue with the interpreter, as she was given numerous opportunities, in different ways, to explain the concerns, but she did not do so.
The Tribunal was unable to reconcile her contradictory evidence as to how, when or why she had received the [House 1].
The Tribunal asked her son about the [House 1] and he said that his mother got an inheritance from her father and her brother bought a house for her with the inheritance in 2013. While this evidence is similar, it does not overcome the inconsistent and changing evidence of the applicant.
The Tribunal’s concerns about the [House 1]remain and the credibility of the applicant when discussing this, remain.
Secondly, the applicant’s evidence in relation to the separation was unclear.
She said that she is separated from her husband. The Tribunal asked when, and she said it was difficult to say, but she then said that she has been here 5 years, so 4–5 years before that. The Tribunal put to her that this would indicate that she had been separated about 9–10 years ago, thus in about 2012–2013. She responded that she is not educated so she doesn’t know the years.
When the Tribunal asked what happened when she and her husband separated (whether there was a particular event leading to the actual separation), the applicant just repeated her claims, namely that she had property that he wanted, he told her to become a Shia which she refused, she wanted to be with her children and her daughter had to get married and she came here to see her son. The Tribunal repeated the question, but she only said that he used to threaten to kill her all the time if she did not give him the property and he wanted her to give the property to the new wife.
When the Tribunal asked whether it was the applicant or her husband who moved out when they separated, she did not respond. She then said she was in her house that her father had given to her, Lahore, the[House 1]. She continued to live in that house until she left for Australia in December 2016, and her husband was renting. This indicated that her husband had moved out when they separated.
The Tribunal asked the son, but he stated that he doesn’t recall the exact date of separation, he thought it was about 2006.
The Tribunal was not satisfied with the applicant’s evidence as to when she and her husband separated, and it was not satisfied that the son’s evidence clarified this.
Thirdly, the applicant gave evasive evidence when asked when her husband first threatened to kill her. The Tribunal asked if this occurred when she got the property or when he remarried. In response, she said that as soon as she got married he was misbehaving with her.
The Tribunal put to her that she is not answering the questions which may lead to concerns about her credibility. The Tribunal again asked when her husband first threatened to kill her and she said when he got married he used to misbehave with her and then it increased and he started threatening to kill her. The Tribunal noted that she again had not answered the question. She then said that as soon as he got married (the second time) he started to threaten her “more” and she decided to come to Australia. She confirmed that when he got married the second time [2011 or when she found out in 2013], he threatened to kill her.
Her son, however, said that she was being threatened to be killed “almost every day” from her husband from 2009/2010 onward. The Tribunal did not consider this to be credible, as he is suggesting that his mother was threatened to be killed almost every day by her husband for a period of 6–7 years. As put to the son, he had come out to Australia on 2 May 2015, about 19 months before she was granted her visa to visit him. The Tribunal considered that if his mother’s life was at risk and she was receiving almost daily threats to her life from a man who had been beating her up, he would have made it a priority to organise his mother’s visitor visa as an escape. The Tribunal notes that the applicant herself did not claim that she received almost daily threats from her husband that he would kill her, indeed she had claimed that after he moved out to live with the second wife, he only came to visit her 2-3 times per month. The Tribunal considers that this undermines his credibility and his supporting evidence.
Concerning the applicant, she claimed that her husband started to threaten her more once he married (2013 when she found out) and she decided to go to Australia. Yet, despite her having access to funds from her brother, and despite her son planning to go study in Australia, she significantly delayed her own application to come to Australia, which undermines her claim that she was subject to death threats from her violent husband.
Fourthly, the reasons why hr husband threatened to kill her were inconsistent between the applicant and her son. As noted above, the applicant claimed there were 2 reasons: her failure to convert her religion, and her failure to transfer to him her inherited property. Her son, however, claimed that her husband threatened to kill her almost every day because he wanted 3 things from the applicant that she refused to give: that she converts to Shia Muslim, that she transfer the property to him, and that he wanted her to live with his second wife.
The Tribunal noted that the applicant had never made this third claim, not in her statement or her interview with the delegate, and not at the hearing. The Tribunal put this to the applicant. In response, she said when the Tribunal has asked her today, she has answered honestly, but if the Tribunal is referring to certain past times, she has been living apart from her children and she is not mentally stable or in a good state. The Tribunal asked whether she had seen a doctor about her mental state, and she said that she did not have enough money to see a doctor. The Tribunal does not accept this explanation. She has a brother in Pakistan whom she claims is very rich, and she has a son in Australia with whom she lives. The Tribunal does not accept that she cannot afford to see a doctor, and it considers that there is no credible medical evidence before it as to her mental state. The Tribunal does not accept that the applicant would have forgotten this crucial fact (that her husband wants her to live with him and his second wife), and it does not accept that this is true, noting that the applicant in her response did not even clearly state that her husband did want her to live with him and his second wife.. This indicates that the son made up this claim to support his mother’s protection visa application. The Tribunal considers that this undermines his credibility and his supporting evidence.
Fifthly, the applicant and her son gave inconsistent evidence as to whether the applicant had approached the police in Pakistan. The son said that they did go to the police and to the district councillor, but the applicant did not mention going to the police; she only mentioned the district councillor. The son said that they cannot complain about domestic violence, and whenever they complain to the police, the police don’t get involved. The Tribunal asked how many times they complained to the police and he responded that he was young in those days but obviously his mother and her brother and her father would talk to the police, but the police didn’t do anything in the matter and they approached a councillor, however, the problem was that if a woman gets divorced, there is not a good impact on the family name and reputation.
When the Tribunal put to the applicant that she had not claimed she complained to the police in giving her evidence, she said that she did tell the first interpreter at hearing that she went to the police. The Tribunal does not accept this, noting that such a claim was also not mentioned in either her statement or at the delegate’s interview: where, when asked if she went to the police, she did not respond to the question about the police; she just said that she went to complain to the mayor and her eldest brother spoke to her husband about the abuse. The Tribunal notes that in her protection visa application form, she said that she did not approach the authorities for assistance. The Tribunal is not satisfied that she or anyone on her behalf did approach the police.

The Tribunal considers that this undermines her son’s supporting evidence.
Finally, the Tribunal asked the applicant numerous questions about why, if her husband had wanted to kill her ever since 2011/2012/2013, he had not done so. Her evidence was often non‑responsive. The Tribunal put to her that it seems that he wanted for 3 years (or more) for her to sign over the property to him, and to convert, yet she was able to resist him. It put to her that he could have forced her to sign property transfer documents, but he did not do so. She did not engage with these concerns; she simply said that the main thing was that he wanted her to change her religion and he threatened her that she had to do so; and she was really afraid for her life.
When considered as a whole, together, the above inconsistencies, lack of engagement and changing evidence lead the Tribunal to find that the applicant has embellished her claims, and that her son has also done this.
Findings on the applicant’s claims
Despite the significant concerns above, the Tribunal found that some of the applicant’s claims have a ring of truth to them, and it has accepted some core elements of her claims, noting that these core elements were also supported by her son’s evidence.
The Tribunal accepts that the applicant is a Sunni Muslim (the majority religion in Pakistan), that she was married to her husband [name deleted](as set out in the visitor visa application) and that she has 3 children, one of whom is a student in Australia.
It accepts that her husband took another wife: this is supported by country information and there has been consistent evidence about the existence of a second wife, although there has not been consistent evidence as to when and how this was discovered. In this regard the applicant told the Tribunal that she came to know he had a second wife because he told her. The Tribunal put to her that in her statement she claimed it was her relatives who told her he had a second wife. In response, she said that she did come to know from them and that he himself said so. The Tribunal put to her that if he had told her this, it would expect that this would also be in her statement, but it was not. She responded that she did come to know from other people he had a second wife, and that the way a husband acts, one comes to know there is something, so she came to know. The Tribunal is prepared to accept that the information could have come to the applicant in different ways.
The Tribunal accepts that the applicant was unhappy when her husband took another wife. It does not accept that the husband wanted the applicant to live with the second wife (noting this was not a claim that the applicant herself had ever made). Having regard to credibility concerns, the Tribunal is also not satisfied that the husband wanted the applicant to change her religion.
Although the applicant did not claim in her statement that she had been physically and verbally abused and threatened by her husband throughout their marriage and after their separation, she did claim in her protection visa application form that she had previously experienced (unspecified) harm in Pakistan. The applicant made the claim to the delegate at interview that her husband physically harmed her. The Tribunal put to her that she claimed at interview and at hearing that her husband beat her a lot, but never she made that claim in her statement. It asked her why she did not make this claim in her statement. She responded that he used to hit her a lot. The Tribunal repeated that this was not in her statement; in response, she said that the Tribunal is asking her, so she is telling the Tribunal. The son also claimed that his mother was beaten up by her husband.
Although the Tribunal was concerned that this abuse was not mentioned in her statement accompanying her protection visa application form, the Tribunal accepts that she made this claim both at interview and at hearing, and that her son also made this claim. Such treatment of the applicant by her husband is also supported by the country information on domestic violence (referred to below). The Tribunal has decided that this core claim is credible, and it is prepared to accept that the applicant was verbally and physically abused by her husband throughout their marriage. The Tribunal accepts that her husband continued to do this even when he moved out to live with his second wife.
The Tribunal accepts that the applicant’s parents were financially well off and that her brother remains so. It accepts that the applicant received some sort of payment from her parents’ estate which was facilitated by her brother which somehow translated to being a home in her name: he [House 1] (it is not satisfied that the evidence about this has otherwise been truthful). The Tribunal accepts that, for this applicant, it is incredibly important to her to retain ownership of the property, and keep it out of her husband’s hands, because she cares almost solely about her 3 children and wants to bequeath it to them. The Tribunal finds it credible that her husband insisted that she transfer the property to him and that she resisted this. It is also credible that he used violence towards her as she failed to transfer the property to him. The Tribunal does not however consider that he made credible threats to kill her (ever since she had the inheritance which may have been around 2013), as this indicates that he threatened to kill her for years but did not do so.
The Tribunal accepts that her family has tried to help her while she has been the subject of abuse from her husband (her father moving in with her and organising for her to have funds, her brother speaking to her husband to try to get him to stop beating her, and taking her to see the mayor/district councillor). The Tribunal finds that this assistance did not help (for a combination of reasons, including the attitudes towards domestic violence in Pakistan which must have empowered the husband to continue his abuse). The Tribunal does not accept that the applicant approached the police, given her consistent failure to claim this.
The Tribunal accepts that her children wanted to get her out of the country. While the Tribunal was also concerned, like the delegate, with the applicant stating that her husband was an incentive for her to return to Pakistan in her visitor visa application, the Tribunal is prepared to accept that her children completed the application for her and that they provided this information falsely to assist her in obtaining a visa to Australia.
The Tribunal accepts that the applicant planned to return to Pakistan after visiting her son in Australia and that she greatly misses her children in Pakistan (with whom she speaks daily). While her preparedness to go back to Pakistan could undermine her claims to fear and face harm in Pakistan, the Tribunal considers that for this particular applicant, she did not know life any different to the situation in which she lived.
The Tribunal accepts that the applicant’s husband considers that he has ownership over her, he did not give her permission to travel to Australia and he was angry when she did so, he did not give her permission to stay in Australia for the last 7 years, and he still wants her to transfer her inheritance property, the[House 1], to him, which she has not done to date. It accepts that he has a history of beating her for many reasons. The Tribunal considers that if she returns, the applicant will continue to resist transferring the property to her husband because her genuine concern in life is her children’s welfare and she wants them to have this property. The Tribunal accepts that she has always been of this view and will remain of this view despite having been subject to threats, abuse and attacks from her husband for not transferring the property to him. The Tribunal considers there is a real chance that her husband will again threaten and abuse and attack her.
The Tribunal now considers whether the applicant has a well-founded fear of persecution if she returns to her home.
Member of a particular social group of women in Pakistan
The Tribunal has not accepted the claim about the applicant’s religion. However, the Tribunal has considered the claim that arises on the material that she faces a real chance of serious harm as the member of a particular social group of women in Pakistan.
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.
A UK Home Office report[7], also issued after the hearing in this matter, states:
The status of women differs in terms of their class, religion, education, economic independence, region and location (urban or rural), cultural and traditional values, caste, educational profile, marital status and number of children. However, patriarchal attitudes and discriminatory stereotypes about women’s roles and responsibilities in the family and in society, worsened by religious divisions in government, maintain their subordination to men.
A Thomson Reuters Foundation survey, dated 2018, consisting of 550 experts on women’s issues, ranked Pakistan as the ‘… sixth most dangerous and fourth worst [country in the world for women] in terms of economic resources and discrimination as well as the risks women face from cultural, religious and traditional practices, including so‑called honor killings. Pakistan ranked fifth on non-sexual violence, including domestic abuse.’
[7] ‘Country Policy and Information Note – Pakistan: Women fearing gender-based violence’, UK Home Office, November 2022
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.
The Tribunal accepts that being a woman in Pakistan is a characteristic that is shared across the group of women in Pakistan, that the applicant shares this characteristic, that it is innate to her being and that the characteristic is not fear of persecution.
The Tribunal accepts that the applicant is a member of the particular social group of women in Pakistan.
Section 5J(1) refers to the subjective and objective requirements of a of a well-founded fear of persecution. This requires that the applicant’s fear of being persecuted is for reasons of race, religion, nationality, membership of a particular social group or political opinion (5J(1)(a)), and that there must be a real chance that if she returns to Pakistan, she would be persecuted for one or more of the reasons mentioned. The Tribunal has accepted that she is a member of a particular social group and it must now consider the concept of persecution, which is not defined in Australian law (but is further explained[8] by ss 5J(4)–(5)).
[8] In SZTEQ v MIBP (2015) 229 FCR 497 at [62]–[63] the Court observed that rather than intending to qualify the concept of ‘persecution’ in the Convention, ‘the Parliament had as its touchtone the Convention concept of persecution, as the Parliament understood that to be’. The Court went on to say that ‘[b]y express incorporation of the concepts of serious harm and systematic and discriminatory conduct, the Parliament intended to give more particular content to the term in the way the text of the Convention does not, to avoid what the Parliament saw as the expansion of the concept by the courts …’: at [66]. See also SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.
Section 5J(4)(b) requires that the persecution involves serious harm to the person. Section 5J(5) provides instances of serious harm: (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.
In this case the Tribunal accepts that, in returning to her home, the [House 1], the applicant faces a real chance of serious harm in the form of physical and verbal abuse from her husband. The Tribunal accepts that the persecution involves serious harm: s 5J(4)(b).
Section 5J(4)(a) requires that the applicant’s membership of the particular social group of women in Pakistan is the essential and significant reason for the feared persecution (s 5J(4)(a)).
The applicant’s agent of persecution in her home area is a private actor, her husband. The Tribunal has set out in paragraph 76 above the reasons why the applicant faces harm from her husband.
When considering the essential and significant reason for the feared persecution, there are a number of different views. Although it may be argued that he is persecuting her because of her membership of the particular social group of women in Pakistan, in this case the Tribunal considers that the husband has harmed and will continue to harm the applicant for his private reasons (private persecution by a private actor as referred to in Applicant A below).
Traditionally, persecution by private individuals or groups was not considered to be a reason to grant protection as a refugee (under the 1951 Convention relating to the Status of Refugees (the Convention)) unless the State either encourages or is or appears to be powerless to prevent that private persecution. In Applicant A v MIEA, the High Court stated:
A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well-founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent … Thus the definition of “refugee” must be speaking of a fear of persecution that is official, or officially tolerated or uncontrollable by the authorities of the country of the refugee’s nationality.[9]
The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.[10]
[9] Applicant A v MIEA (1997) 190 CLR 225 at 233, referred to with approval in MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [19].
[10] Applicant A v MIEA (1997) 190 CLR 225 at 257–8. Note that in MIMA v Khawar (2002) 210 CLR 1, Gleeson CJ and Kirby J adopted a broadly similar view. However, Gummow and McHugh JJ appear to suggest a slightly different view on this issue.
The question of whether a person can be persecuted by reason of a failure of State protection has previously arisen in the context of women fleeing domestic violence from their husbands; in the case of MIMA v Khawar,[11] the High Court considered this concept of persecution having regard to the Convention. The claimant in that case claimed a fear of persecution from her abusive husband and members of her husband’s family, and that police refusal to enforce the law against such violence or otherwise offer her protection was considered part of systematic discrimination against women which was both tolerated and sanctioned by the State. The High Court confirmed that the Convention test of persecution may be satisfied by the selective and discriminatory withholding of State protection for a Convention reason from serious harm that is not Convention related.[12]
[11] MIMA v Khawar (2002) 210 CLR 1.
[12] MIMAv Khawar (2002) 210 CLR 1.

[2023] AATA 2680

29 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction