1722699 (Refugee)

1722699 (Refugee) [2022] AATA 1695 (12 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722699
CASE NUMBER:  1904315
CASE NUMBER:  2005282
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Penelope Hunter
DATE:12 April 2022
PLACE OF DECISION:  Sydney
DECISIONS: In matter number 1722699, in respect of the [first named applicant], the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
In matter number 1904315, in respect of the [second named applicant], the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
In matter number 2005282, in respect of the [third named applicant], 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 12 April 2022 at 4:23pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – children in Pakistan without effective adult or family protection – Shia children in Pakistan without effective adult protection from societal violence or exploitation – Shia faith – mother’s mental health issues – credibility assessment – Tribunal’s Guidelines on Vulnerable Persons – family violence – societal violence or exploitation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

These matters are applications for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the respective applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
All applicants are members of the same family and were born in Australia to parents of Pakistani nationality. [The first named applicant] applied for the visa on 7 October 2015, Tribunal application 1722699. [The second named applicant] applied for the visa on 16 November 2017, Tribunal application 1904315. [The third named applicant] applied for the visa on 6 March 2020, Tribunal application 2005282. Collectively they are referred to in this decision as the applicant children. In relation to each application the respective delegates refused to grant the visas to the applicants on the basis that they were not satisfied that they were persons to whom Australia owed protection obligations under the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
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.
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).
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.
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
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.
CLAIMS AND EVIDENCE
The applicant children were all born in Australia to parents of Pakistani nationality. The first named applicant is a [age]-year-old female born [date], the second named applicant is a [age]-year-old male born on [date], and the third named applicant is a [age]-year-old male born on [date].
The parents, [Mr A] and [Mrs A], an elder sister of the applicant children, [M], arrived in Australia [in] March 2013. At that time, their mother was the primary applicant for a Subclass 573 Student visa. On 26 September 2013 [Mr and Mrs A] and M applied for a protection visa while in Australia. Their older brother, [H], was born on [date], and he was subsequently included in that visa application.
In March 2014 the Department refused the protection visa application of the parents and older siblings. The family sought a review of that decision with the Refugee Review Tribunal (RRT) and on 7 September 2015, this Tribunal, differently constituted (the first Tribunal), in matter number 1406902 affirmed the decision to refuse the application for a protection visa.
The applications filed by the applicant children were submitted by their mother, [Mrs A]. These claims were set out in several statutory declarations filed with the visa application, dated 22 July 2013, 11 May 2015, 6 July 2015, 1 September 2015, 4 September 2015, 7 October 2015 and 15 November 2017. As well as a letter of submission dated 22 May 2018.
The claims of the first named applicant made to the Department included the following:
1. Although her parents are citizens of Pakistan, the first named applicant had not been registered with the authorities of Pakistan. She did not presently have the right to reside anywhere but may be eligible for citizenship of Pakistan.
i.She is a Shia Muslim and will be targeted by Sunni Muslims.
ii.The first named applicant is female and will suffer from gender/sexual violence in Pakistan.
iii.She will be discriminated against as a returnee, having been born in Australia.
iv.Her maternal grandparents were divorced and she will suffer discrimination due to this.
v.Her mother has mental health issues and the first named applicant will suffer from discrimination because of this.
vi.Due to her mother’s mental health issues she will suffer harm from her mother. If the first named applicant returns with her family to Pakistan, her mother would be unable to receive adequate medical care and because she would be distressed at leaving Australia, her mental health can be expected to deteriorate resulting in harming of her children.
vii.Her family had experienced considerable harassment and discrimination in the past in Pakistan and this harm was directed at them because of their Shia faith and her mother’s status as a woman and a child of a single parent.
The claims presented on behalf of the second named applicant to the Department, included those made on behalf of the first named applicant but also added the following claims:
i.He is at risk of sectarian violence against children occurring in Pakistan.
ii.As a child he is at risk of violence of an indecent and sexual nature, abduction and serious discrimination.
iii.The second named applicant’s maternal grandmother had passed away, his family now had no available support or protection in Pakistan.
In addition to the statutory declarations filed in relation to his siblings, the application to the Department also included a statement of claims and information by [Mrs A] dated 22 May 2018. The claims presented on behalf of the third named applicant included those made on behalf of the first and second named applicant and also the following:
i.He will be harmed or killed by extremist groups who are targeting Shia.
ii.As a young boy the third named applicant will be targeted as a means of terminating the male line of a Shia family.
iii.The third named applicant’s status as a Shia Muslim child of a mother with a mental illness will further motivate members of the Sunni and Wahabi population to harm him, and he will face societal social stigma and discrimination.
iv.The third named applicant’s lack of familial protection in Pakistan could act as an incentive for people to harm him because they are likely to consider that he would be unable to respond to acts of violence due to his lack of family protection and support.
In the various statutory declarations and statements presented, the following relevant matters involving the family of the applicant children were set out in the evidence before the Department:
1. The mother of the applicant children was born in Abbottabad, in the province Khyber Pakhtunkhwa (KPK) in [year]. Their grandparents divorced before their mother was born due to religious differences, and she has no siblings. Their mother was raised by their grandmother and maternal great uncle.
2. The father of the applicant children was born in Haripur, also in KPK. He has no siblings, and their paternal grandfather died when their father was a child.
3. In Grade 5, [Mrs A] witnessed a Shia man being shot dead by a group of Sunni Muslims in the marketplace. After this the men threatened to kill any witnesses if they spoke about what they saw.
4. Before she married [Mrs A] claimed she suffered day-to-day harassment. She had experienced a lot of harassment when she walked down the street in Pakistan, Sunni men would shout vulgar comments at her. They often called her a bastard, as she was raised by her single mother. While at university she was harassed and ostracised by her peers who saw her as in illegitimate child. When their mother started work, one of her colleagues propositioned her for sex and referred to her as a prostitute. Her colleagues would touch her inappropriately.
5. The harassment that [Mrs A] experienced while growing up because she had no father, was female and a Shia; was so constant that she began experiencing thoughts about trying to kill herself or other people. In 2007, her mother went to a doctor and he gave her medicine to help her sleep. In 2008, [Mrs A] tried to kill herself by overdosing on the medication her doctor gave her. She was then taken off her medication and her doctor recommended that the applicant’s mother get married to put her in a stable environment.
6. Their parents’ marriage was arranged. [Mr A] worked as an [Occupation 1] to a [Occupation 2], and after they were married [Mr and Mrs A] moved to Haripur and lived with the applicant’s paternal grandmother. As Shia Muslims, their parents were a smaller minority in Haripur and faced many problems even though they tried to be discrete.
7. During the Muharram festival in 2009 in Haripur, the applicant children’s parents claimed that their Sunni neighbours spread information across the neighbourhood about what they were doing. Sunni extremists confronted their father on the street threatening to kill him. Their parents’ neighbours disconnected their water and electricity, threw stones at the front streetlight and Sunni teenagers would ring the doorbell and run away. Glue was also placed in the front door lock. The applicant children’s parents complained to the police, but they were dismissed and told that many people experience harassment in Pakistan, and it was not a big matter.
8. While pregnant with her second child, [Mrs A] received insults from the Sunni extremists. Her sister M was injured when someone threw stones at her in the garden.
9. During the Muharram festival in 2011, around mid-February [Mrs A] and her sister M were attacked on the way to mosque when [Mrs A] was eight months pregnant. While stepping onto a Suzuki wagon used for transport, a woman known to be a member of Sipah-e-Sahaba pushed [Mrs A] and she fell back on to the road. She lost consciousness, was taken to hospital; she lost the baby but was released the following day. [Mrs A]’s mental health was also affected as a consequence of being pushed off the back of the vehicle and losing her child.
10. Following the loss of their second child, their parents returned to Abbottabad. They left Haripur late at night so that they would not be threatened or attacked. The family of [Mrs A] could not support them, so they stayed at the local mosque, in hiding and in fear of being attacked by Sunni extremists.
11. [Mrs A]’s uncle suggested that the applicant study in Australia to practise her religion safely. Their parents borrowed money from the bank, used savings and [Mrs A]’s uncle lent them some money for plane tickets to Australia.
12. The applicant children’s parents had delayed applying for a protection visa upon arriving in Australia as there was a lack of stable accommodation in Sydney, and their family lacked finances. Shortly after their parents’ arrival [Mrs A] gave birth to their elder brother. Their parents claim that there was a lack of support and knowledge of how to access support services, and they had received advice that the Student visa would be cancelled if the family applied for another visa.
13. Prior to the birth of the first named applicant, [Mrs A] began experiencing disturbing thoughts and she would think about hurting herself or the older siblings of the applicant children.
14. After the first named applicant was born, [Mrs A]’s bad thoughts became more frequent, and she found herself being aggressive towards the father of the applicant children and their siblings. Sometimes [Mrs A] would call [Mr A] home because she was worried about her thoughts and that she would harm the first named applicant and their siblings.
15. On 25 July 2015, [Mrs A] was admitted to the psychiatric ward at [Hospital 1] after attempting to strangle their elder sister M. [Mrs A] remained there until 11 August 2015. The NSW police also sought an Apprehended Violence Order on behalf of the first named applicant and her siblings. On 27 August 2015, orders were made for their protection for a period of 12 months.
xvi.Upon discharge from hospital [Mrs A] began a process of seeking medical intervention and NSW Family and Community Services (FaCS) were monitoring the family and arranged for [Mrs A] to undergo assessment and receive treatment from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS).
xvii.Although their mother’s condition had improved since being discharged from hospital, she continues to experience episodes where she gets very upset and cannot be around the applicant children, their siblings or [Mr A]. She has anxiety that people are coming to their home, and she fears for the applicant children and their siblings.
xviii.[Mrs A]’s mother died in July 2017; she claims to have lost her only supportive relative in Pakistan. Her mother’s death has given rise to a dispute with her uncle over an interest in [Mrs A]’s grandfather’s estate. [Mrs A] claims that threats to kill her and her family have been made if she does not assign her interest in the estate to her uncle.
xix.If they return to Pakistan the authorities in Pakistan could not protect the applicant children as the police are corrupt and reluctant to investigate crimes against women and sectarian violence. In the past when their family has experienced violence the police have been unwilling to assist.
1. If they return to Pakistan and people find out about [Mrs A]’s mental health problems, [Mrs A] will be discriminated against when trying to access employment. As children of a person with a mental illness the applicant children will be subjected to a lot of harassment and teasing.
2. Returning to Pakistan will make it harder for [Mrs A] to deal with her mental illness, and she would not be able to have adequate medical care. [Mrs A]’s condition is expected to deteriorate having to leave Australia and this deterioration could result in her harming the applicant children and their siblings.
The following documents were also submitted to the Department on behalf of the applicant children:
i.A summary of [Bank 1] Account transactions for the applicants’ parents, June to October 2013.
ii.Letter from RACS dated 25 June 2015, confirming that [Mrs A] consulted them on 9 July 2013.
iii.eDischarge Report from [Hospital 1] for [Mrs A], admission date 25 July 2015 and discharge date 11 August 2015.
iv.Report of [Mr B], Clinical Psychologist, dated 2 September 2015. [Mrs A] is reported to experience intermittent and recurrent symptoms of depression. She also described symptoms of post-traumatic stress disorder (PTSD) consequent to the loss of her second child. Her psychiatric/psychological deterioration coincided with the rejection of her visa application. Her results of the Depression and Anxiety Stress Scale (DASS 21) were extremely severe symptoms of depression, severe symptoms of stress and severe symptoms of anxiety. She suffers from Major Depression (recurrent type) and requires ongoing psychological care. The report stated: If [Mrs A] was forced to return to Pakistan with her family, she would be subject to ongoing harassment and discrimination, which would exacerbate and worsen her psychiatric condition, leading to a recurrence of Major Depressive Episode with suicidal ideation and probable intent.
v.Letter of [Mr B], Clinical Psychologist, dated 3 November 2015. When he consulted with [Mrs A] on 28 October 2015, he administered tests to rule out the possibility of [Mrs A] malingering or acting fictitiously. He is of the opinion that [Mrs A]’s presentation and her illness is genuine.
vi.A report on [Mrs A], by [Dr C], Consultant Psychiatrist, dated 29 March 2016.The main diagnosis from [Mrs A]’s history was either major depression with psychotic features or a schizophrenic illness.
vii.STARTTS, Psychological Assessment Report, [named] Clinical Psychologist Registrar, of [Mrs A] dated 10 June 2016. [Mrs A] displayed and reported symptoms of major depressive disorder and PTSD. At present the impact of depression, stress and anxiety appear to be significant on her daily functioning. A stable prognosis was uncertain.
viii.Letter of [Ms D], registered clinical psychologist, dated 7 November 2017 regarding [Mr A], and confirming he has been attending STTARTS since October 2015 for psychological treatment. [Mr A] has clinically significant symptoms of depression, anxiety and PTSD.
ix.Letter of [Dr E], perinatal psychiatry registrar, dated 29 November 2017, due to her conditions, [Mrs A] is not currently in a position to care for the children without the support of her husband and external carers. There are past child protection concerns and she has indicated thoughts of harming herself and her children.
x.Letter of [Mr F], CALD caseworker, [Organisation 1] dated 29 November 2017. The family were referred by FaCS due to the concerns regarding the children being at risk of significant harm.
xi.Letter of [Mr G], dated 24 January 2018, in 2015 following the birth of the first named applicant there was a presentation to the emergency Department where the mother physically assaulted three children, including placing a skipping rope around a child’s neck in an attempt to strangle her. [Mr A] intervened to safeguard the children. [Mrs A] reported having thoughts of harming her children and her husband for a number of months and there were reports of domestic violence perpetrated by [Mrs A] towards her husband.
xii.Summary of Psychological Treatment for [Mrs A], [Mr A] and M, dated 13 March 2018. [Ms H], psychologist; [Ms D], clinical psychologist; and [named] clinical psychologist. This report documents several incidents of attempted self-harm by [Mrs A] since 2015 directed at herself and harm to the applicant children and their siblings. [Mrs A] is reported to pose a high risk of self-harm and harm to her children. It is concluded that [Mrs A] does not wish for her children to endure the hardships that she has experienced in Pakistan and given her history of harm to the children and suicide attempts this should be taken seriously.
xiii.Letter of [Dr I], perinatal psychiatrist, dated 15 July 2019, [Mrs A] has recently been diagnosed with bipolar affective disorder, in addition to PTSD.

The applicant children’s parents were interviewed only in relation to the claims of the first named applicant on 17 February 2017. At that time the family was represented. This subsequently ceased and [Mrs A] advised the Department that due to her mental health issues she was not in a fit state to be interviewed in respect of the second and third named applicants.
Tribunal application
The applicant children were invited to a combined hearing before the Tribunal to give evidence and present arguments on 7 May 2021. The hearing was a combined hearing with the related applications of the applicant’s younger brothers, [second named applicant] matter number 1904315, and [third named applicant] matter number 2005282. The applicant’s mother [Mrs A] and father [Mr A] appeared on her behalf to give evidence and present arguments. [Mr and Mrs A] were supported at the hearing by [Ms J]. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. At the hearing the following further documents were submitted:
1. STARTTS Psychological report of [named] provisional psychologist and [named] clinical psychologist, on [Mrs A] dated 5 May 2021.
2. STARTTS, summary of treatment for [second named applicant], [Ms K], Early Childhood Counsellor, dated 5 May 2021.
3. Letter of [Dr I], Perinatal Psychology, dated 6 May 2021, regarding Mrs [Mrs A], diagnosis complex post-traumatic stress disorder, bipolar affective disorder type 1, and emotionally unstable personality traits.
4. Letter dated 5 May 2021, from the principal of [School 1], confirming the enrolment of the first named applicant and her older siblings.
5. Personal reference of [Ms L], president [School 1] P & C dated 5 May 2021, for Mrs [Mrs A].
At the hearing, the Tribunal received the following relevant additional information and claims from [Mrs A]:
1. The applicant children had been taught to practice the Shia religion in Australia. The family will join in prayer, prior to COVID-19 restrictions they would attend the mosque. It was claimed that in Australia the applicant children can practice their religion with their family freely. In the family’s home area of Abbottabad, it was claimed that there was only one Shia mosque, and attendees stood out to the majority Sunni population.
2. [Mrs A] made claims that she had difficulties in school due to her religion and because her parents were divorced. [Mrs A] said that when teased at school she would become angry, and this led to her being suspended and expelled from various schools. Ultimately [Mrs A] claimed that she needed to complete her education privately, her mother paid for this. She feared that the same thing would happen to the applicant children, but they would not have the funds to pay for their education.
3. The uncle that is referred to in various submissions is married to the sister of [Mrs A]’s mother. He is also the brother of her maternal grandmother. In 2003, when [Mrs A] was around 15, she witnessed her uncle kill one of his daughters, her cousin. Her cousin was 16 and had entered into a relationship and planned to marry a man who was not of the Syed caste. She was thrown into a well, an honour killing. She was told not to ever mention the incident to anyone, and she was threatened that if she did something similar that they would do the same to her. She claimed to have disclosed this incident to one of her treating medical practitioners.
4. [Mrs A] claimed to study mostly from home while at university in Pakistan due to harassment from mostly male colleagues. When she had exams, she would ask her mother to accompany her to the university and wait outside the room.
5. [Mrs A] conceded that claims she had made about her previous employment in a bank in Pakistan when lodging her Student visa were not correct. She said that she had relied on her agent and signed the forms that he and her uncle prepared for her. All the property that she claimed in the Student visa application that belonged to her and [Mr A] was actually the property of her uncle.
6. After the death of her mother, [Mrs A] claimed that her uncle had become very greedy, he will no longer talk to her and she did not think that he would provide any support to her or the applicant children if they were required to return to Pakistan. He has threatened [Mrs A] and she has had to change her number so that he can no longer contact her. Occasionally [Mrs A] will contact her auntie because of her connection with her mother, but the aunt cannot act against her husband.
7. [Mrs A] reported that there was domestic violence in her relationship with [Mr A] in Pakistan. It started after the birth of their first child, M. People used to say things to [Mr A] about [Mrs A], that she was no good and that M may not be his child. It caused fights. It has occurred in Australia. [Mrs A] has not raised issues about this treatment before because she is concerned about the further intervention of FaCS with the family. She once mentioned it to her current treating doctor, [Dr I] and she notified FaCS. She did not want to make further trouble for the family.
8. [Mrs A] claimed that she could not access treatment for her mental health condition confidentially in Pakistan. She would also not be able to afford to access treatment or medicine. Sometimes she has strong thoughts to kill herself because of her kids. Her life is at risk because of her parents, and she has put her children’s lives at risk. They would not have lives in Pakistan.
In addition, the Tribunal received the following relevant information from [Mr A] when he was interviewed separately at the hearing:
1. [Mr A] has back problems and in 2018 he underwent spinal surgery.
2. In Australia, [Mr A] had completed some qualifications in Aged Care. He had not obtained employment, he mostly stays home to care for the first named applicant and her siblings. He did not think that his training in Australia would assist him to find employment in Pakistan as there were hardly any aged care facilities and he was getting older.
3. No one will take care of [Mrs A]’s mental health condition if the family returns to Pakistan. She would not be able to access treatment because over there women are just treated badly, especially women with mental health problems.
4. He went to the police to report the incident in 2011 when [Mrs A] was pushed from a car and lost their child. The police would not record a First Information Report because there were no witnesses to the incident.
5. [Mr A] used to get beaten by other children in school because he was Shia. Sometimes they would attack him and take his trousers off.
6. When they lived in Haripur, people would tease [Mrs A] when she went out of the house. They would also say things to him, and because of this sometimes he has beaten [Mrs A] in the past in Pakistan. When asked if the problems had continued in Australia, [Mr A] responded that he was not aware of her mental condition when they were in Pakistan. Even when they arrived in Australia he was not aware of the extent of her problems until the incident when she attempted to kill their children and doctors became involved.
7. Even living in Australia [Mrs A] can become frightened and have panic attacks and she does not know what she is doing. The children will ask him for help.
8. When asked if he would remove the children from [Mrs A]’s care if he thought she would harm them in Pakistan, his response was, “who will take care of her?” [Mr A] claimed that he had to care for both his wife and his children.
9. He was having mental health problems due to the family stress. He was undertaking counselling.
As the evidence in the matters was unable to be concluded in a single hearing a further hearing was scheduled on 10 December 2021, for evidence and arguments to be presented on behalf of the applicant children. The delay in scheduling a further hearing was a consequence of the COVID-19 pandemic and in the inability to hold in-person hearings, together with the applicant’s lack of access to secure video technology and the particular circumstances of the applicant children’s case. Again, [Mrs A] and [Mr A] appeared on her behalf to give evidence and present arguments. [Mr and Mrs A] were supported at the hearing by [Ms J]. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. At the hearing the Tribunal received the following relevant information:
1. There had been little improvement to [Mrs A]’s condition and [Mr A] was not able to find employment.
2. The third named applicant was currently being assessed for behavioural problems and awaiting early childhood intervention.
3. As the applicant children’s eldest sister approached adolescence [Mrs A]’s thoughts were becoming more disturbed regarding the future of young girls in Pakistan.
4. [Mrs A] claimed that she was sexually abused by her uncle from the age of 16 and threatened if she disclosed anything. She had not previously mentioned this because of her deep shame and difficulty establishing extended rapport with her counsellors who regularly changed.
At the hearing the following further documents were received:
1. Letter from [Ms M], psychologist, STARTTS, dated 26 October 2021 regarding [Mr A].
2. [Named] Paediatric Clinic, dated 26 November 2012, regarding [second named applicant].
On 19 December 2019, the Tribunal received additional copies of medical reports previously submitted.
On 21 December 2021, in addition to further duplicated medical reports, the following further documents were submitted:
i.AVO Final Order, Defendant [Mrs A], dated 27 August 2015, order in force for 12 months.
ii.Letter from FaCS regarding closure of file on 20 October 2015.
REASONS AND FINDINGS OF THE TRIBUNAL
Nationality of the visa applicants
All the applicant children were born in Australia. Their birth certificates and the information presented by their parents confirm that they were born to parents of Pakistani nationality. None of the applicant children have been registered with the Pakistan embassy in Australia, and no application has been made on their behalf for a passport. By virtue of their parents’ birth in Pakistan and citizenship, s 5 of the Pakistani Citizenship Act of 1951 grants the applicant children Pakistani citizenship. Pakistan is therefore the country of reference for assessing the claims of the applicant children for protection, and the receiving country when assessing their claims on the grounds of complementary protection.
Assessment credibility
As the applicant children have only lived in Australia the presentation of their claims and the reasons they fear harm in Pakistan is based largely on the experiences of their parents, who are both their witnesses and representatives and arguably lack impartiality. 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, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the visa applicant to satisfy the Tribunal that all of the statutory elements are made out. The Tribunal is not required to accept uncritically any and all the allegations made by or on behalf a visa applicant.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Tribunal acknowledges that there are several issues with the evidence presented by [Mr and Mrs A] over various stages in their pursuit of visas for themselves and their children that give rise to disparities and inconsistencies. The Tribunal has grappled with these issues and it would be an artificial evaluation of all the material presented to dismiss their evidence out of hand for this reason. Issues for the Tribunal particularly arose in relation to specific details of the harassment that the [Mr and Mrs A] claimed to have experienced in Haripur, their living arrangements prior to their departure for Australia, and [Mrs A]’s specific recollection of events leading to the loss of her child in 2011. The Tribunal is also mindful of the comments of Burchett J in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, where he counselled that it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[Mrs A] was also a challenging witness, her evidence is at times erratic, non-linear and she is prone to distraction. The Tribunal acknowledges her documented mental health issues and treatment. Particularly, the Tribunal is cognizant of the reported impact of [Mrs A]’s conditions which are assessed as significant on her daily functioning, give rise to a risk of re-traumatisation due to being required to recount traumatic memories of Pakistan, her reported difficulty in remembering the details of some traumatic events, pattern of loss of short-term memory recollection, and poor concentration. The Tribunal recognises that the assessment of credibility can be based on imperfect perceptions of truth[2] and is guided by observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[3] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[2] Fox v Percy (2003) 214 CLR 118
[3] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
As well as being guided by these decisions, the Tribunal is aware of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by uncertainty of outcome. As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[4] it is mindful that evidence is to be assessed in its entirety and not just isolated parts both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons.[5]
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Guideline on Vulnerable Persons, available on the AAT Website, >
[Mrs A] acknowledged to the Tribunal that in the assessment of her claims for protection, the first Tribunal made adverse findings as to the credibility of herself and [Mr A]. She has conceded that there was in the past material presented regarding her circumstances in Pakistan when she obtained her initial Student visa that was not accurate. She told the Tribunal that at the time she was desperate to leave Pakistan and just signed whatever documents her agent and her uncle put before her. The Tribunal accepts the explanation offered by [Mrs A] and is noted that it is an explanation consistent with that provided to the first Tribunal when her claims were considered in 2015, and to the Department at interview.[6] The issues that have come to the forefront in relation to the review by the applicant children were not advanced or considered in the protection application filed by [Mr and Mrs A] in their own right (Tribunal matter 1406902). No claims were advanced on behalf of the elder siblings of the applicant children and claims regarding [Mrs A]’s mental health were not at the forefront of her own visa application. In this regard it is noted that [Mrs A] experienced her first documented mental health breakdown and was hospitalised for the first time only proximate to the time of the Tribunal’s decision in matter 1406902. The Tribunal has considered this earlier evidence in the context of the claims, the particular vulnerabilities of [Mr and Mrs A] as witnesses and family circumstances presented overall. It is acknowledged that specific untruths do not indicate that the entirety of the evidence presented in support of the applicant children’s claims is untrustworthy.
[6] Department interview [file number]
In the Tribunal hearings in relation to the reviews for the applicant children, [Mrs A] has also made for the first time some new claims of past harm including claims of domestic violence in her relationship with [Mr A], that she witnesses the honour killing of her cousin by her uncle when she was 15 years of age, and that [Mrs A] had been also subjected to sexual assault perpetrated by her uncle in her late teens. The Tribunal has wrestled with how to account for these additional claims. It is mindful of the application of s 423A of the Act which requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made if an applicant does not have a reasonable explanation as to why the claim was not raised or presented.
As to an explanation for the lateness of the claims, in relation to the domestic violence, it was the evidence of [Mrs A], that she was concerned about the intervention of FaCS with the family and this has impacted on her ability to openly discuss this matter and as [Mr A] is here with her in Australia she did not perceive that it would assist her claims to fear harm upon return to Pakistan. The Tribunal considered this explanation reasonable, and this information was also corroborated by [Mr A] unprompted by the Tribunal, when he gave evidence separately at the hearing on 7 May 2021. It is also acknowledged that several of the medical reports submitted also refer to violence perpetrated by [Mrs A] towards [Mr A] and the children in circumstances where her mental health has deteriorated. It follows that the Tribunal does accept that there has been family violence perpetrated by both of the parents of the applicant children in the past.
As to the other claims of violence and assault committed by [Mrs A]’s uncle, by way of explanation for the lateness of the claim, [Mrs A] spoke of her shame, the considerable cultural taboo surrounding such matters and her lack of knowledge of the migration system and representation. It is noted however that claims of an honour killing by her uncle are documented in the medical reports. [Mrs A] also spoke about her difficulty in developing a consistent rapport with her various counsellors as they were often replaced. The violence reportedly perpetrated by [Mrs A]’s uncle is consistent with her reported mental health breakdowns in Pakistan, and also explains for the Tribunal her past difficulties in living with her uncle. The Tribunal considered in the circumstances that there was a reasonable explanation for the delay and has ultimately accepted these claims as also probable.
Assessment of the claims of the applicant children

Upon review of the material before it the Tribunal accepts, and makes the following relevant findings of fact:
1. The first, second and third named applicants are children.
2. The first, second and third named applicants’ mother has significant mental health issues.
3. The first, second and third named applicants are of the Shia religion.
4. The first, second and third named applicants have been born in a western country.
The impact of [Mrs A]’s mental health is claimed to give rise to a risk of harm to the applicant children. The Tribunal has considered the impact of this condition on them now and in the reasonably foreseeable future. The key findings arising from the evidence are as follows:
- The mental health issues of the mother of the applicant children are long-standing. [Mrs A] has reported receiving treatment in 2007, and a previous suicide attempt in 2008 before her marriage while in Pakistan.
- [Mrs A] is repeatedly reported to be impacted from considerable trauma experienced in Pakistan.
- In August 2015, following the birth of the first named applicant [Mrs A] was violent towards their older siblings and attempted to strangle the eldest sibling of the applicant children. [Mrs A] was subsequently hospitalised for assessment and review in [Hospital 1] for 18 days from 25 July 2015 to 11 August 2015.
- On 27 August 2015, an ADVO was put in place for 12 months as sought by the NSW Police for the protection of the first named applicant and her elder siblings for a period of 12 months. FaCS NSW were involved in monitoring the first named applicant and her family until 20 October 2015.
- Since 2015 [Mrs A] has engaged in counselling through STARTTS and ongoing medical review. Her treatment has been impacted by staff rotation at STARTTS, and the financial resources of [Mrs A].
- Since the birth of the first named applicant the family of the applicant children have had intervention and ongoing involvement of family support services including FaCS, [Organisation 2], [Organisation 1], and [Organisation 3].
- Following assessment on 2 September 2015, [Mr B], clinical psychologist, reported that [Mrs A] suffered from major depression.
- In March 2016, [Mrs A] was diagnosed by treating consultant psychiatrist, [Dr C], with either major depression with psychotic features or a schizophrenic illness.[7]
- In June 2016, [a named] clinical psychologist registrar with STARTTS, reports that [Mrs A] has clinically significant symptoms of depression and anxiety, she experiences psychotic episodes and symptoms consistent with a major depressive disorder and PTSD. A stable prognosis at that time was reported as uncertain.
- In October 2017, following the refusal of the first named applicant’s visa by the Department, [Mrs A] was admitted to [Hospital 2] with suicidal thoughts.[8]
- In December 2017, upon hearing that Centrelink payments will be reduced [Mrs A] self-harmed.[9]
- [Mrs A] was admitted for treatment by the Community Mental Health Team (CoHMET) [Suburb 1] in December 2018 for increased risk of harm to herself and others.[10]
- [Mrs A] reportedly became manic in the immediate postpartum period in 2019, and commenced treatment with the Perinatal Psychology team at the hospital. She was subsequently diagnosed by [Dr I] with complex PTSD, bipolar affective disorder type 1 and emotionally unstable personality traits.
·[Mrs A] requires ongoing psychological treatment to be able to manage complex symptoms of bipolar disorder, anxiety and PTSD. Her symptoms, particularly related to the bipolar disorder and PTSD continue to be unstable, creating increased vulnerability and risk to herself and others.[11]
·In addition to psychological treatment [Mrs A] currently requires several medications including Lithium, Escitalopram and Quetiapine.[12]
·Historically and recently [Mrs A] has put her life and that of her children at risk. In a recent incident [Mrs A] took sleeping tablets and also gave tablets to the second and third named applicants, after receiving news via text that the family’s food bank supplies may be cut off if certain conditions were not fulfilled.[13]
- [Mrs A] is reported to pose a high risk of self-harm and harm to her children. She has stated a number of times that if she is required to return to Pakistan that she will end her life and that of her children. Given her history of harm to the children and suicide attempts, several of her treating professionals report that this should be taken seriously.[14]
The first named applicant is aged [age] years, the second named applicant [age] years and the third named applicant [age] years. They are each completely dependent on their parents for the necessities of daily living. At times since their birth, the Tribunal finds on the evidence that [Mr A] has been unable to work as he has been required to monitor, supervise, and assist [Mrs A] with the care of the applicant children and their siblings. At such times the applicant children’s family has been reliant on support services for housing, food, financial assistance, medical treatment, and many of the necessities of daily living.
It is further accepted that both parents of the applicant children originate from cities in the KPK, being Abbottabad and Haripur. Although [Mr and Mrs A] were adamant they did not wish to return to Pakistan, they acknowledged that it was the area to which the family would most probably return. The claim that the family has no support in this area or elsewhere in Pakistan is accepted. It is accepted that both [Mr and Mrs A] are only children. [Mr A]’s mother is aged in her 80s, no longer lives independently and it is claimed she is being cared for by family friends. [Mrs A]’s parents were divorced prior to her birth, she has no contact with her father and her mother has died in 2017. This event has also led to an acrimonious dispute with [Mrs A]’s uncle and aunt regarding interest in [Mrs A]’s mother’s estate. Added to this are the claims by [Mrs A] that her uncle killed her cousin in an honour killing and that she was subjected to assault by him in her late teens. It is accepted that on the evidence that [Mrs A]’s remaining family in Pakistan cannot be relied upon to provide any assistance financially, or by way of shelter or to access employment or medical services to the applicant children or their family.
[Mrs A] would be one of the primary carers for the children in Pakistan. The Tribunal then turned to consider the likelihood of [Mrs A] being able to access medical intervention and support services if the family returned. DFAT reports that the overall standard and availability of healthcare in Pakistan is low.[15] It is acknowledged that such services are reportedly available and, according to the WHO Mental Health Atlas 2017 profile for Pakistan, there were 11 psychiatric hospitals in the country, 800 psychiatric units in general hospitals and 578 residential care facilities, all offering in-patient care.[16] It is also reported that there are a further 3,729 outpatient mental health facilities, of which only three are for children or adolescents. According to one report from the UK Home Office, the cost of mental health services and medications are subsidised, with people paying approximately 20% of the cost of those provisions.[17] However, DFAT disagrees with this assessment and believes the cost is closer to 70%[18] for patients. While it is acknowledged that these services are available the resources are thinly spread and it is also estimated around 50 million people in Pakistan suffer from mental disorders, including anxiety, depression, bipolar disorder and post-traumatic stress disorder.[19] In relation to mental health, DFAT further comments:
Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 percent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan. [20]
In addition, there is a reported cultural stigma attached to mental health conditions. The UK Home office, in its September 2020 report, suggested the conversations regarding mental disorders in Pakistan were limited. Many families believed mental disorders were the result of supernatural matters.[21] It is reported that it is commonly believed that people with mental health issues bring shame upon themselves and their families.[22]
[15] DFAT Country Information Report – Pakistan, 25 January 2022 at 2.10
[16] ‘Country Policy and Information Note - Pakistan: Medical and healthcare provisions', UK Home Office, September 2020, pp.27-30, 20201012173511
[17] Ibid, [4.12.10]
[18] ‘DFAT Country Report: Pakistan’, Department of Foreign Affairs and Trade, 25 January 2022, 20220125094359, [2.12]
[19] The News, ‘Dispelling myths about mental health’, 16 February 2020
[20] DFAT Country Information Report – Pakistan, 25 January 2022, at 2.14
[21] ‘Country Policy and Information Note - Pakistan: Medical and healthcare provisions’, UK Home Office, September 2020, pp.27–30, 20201012173511, [4.12.5–4.12.6]
[22] European Asylum Support Office, EASO Country of Origin Information Report, Pakistan Overview, August 2015
[Mr and Mrs A] acknowledged at the hearing that they understood the importance of regular medical intervention for [Mrs A]’s condition. They told the Tribunal that [Mrs A] would not be able to access treatment in Pakistan because un their own experience mental health remains stigmatised, they could not afford to pay for it, they did not have connections to assist in accessing it and she would face additional barriers because is a woman and a Shia. The Tribunal accepts that mental health issues remain stigmatised in Pakistan. It is also accepted that mental health services are under-resourced and inadequate for demand. Furthermore, any costs of treatment would be unable to be met by the family without financial assistance. It is also accepted that from the country information that [Mrs A]’s gender and religion would further restrict her ability to find suitable treatment or medication. It is probable she will not be able to access the ongoing psychological and pharmaceutical treatment that she requires to manage her complex symptoms of bipolar disorder, anxiety and PTSD.
As to the impact of [Mrs A]’s condition on the applicant children, the evidence is that [Mrs A]’s condition can cause her to have erratic and impulsive behaviour, violent outbursts or she will leave the family home. There are documented incidents where but for the intervention of [Mr A], either [Mrs A], or the applicant children and their siblings have been harmed and there has been the intention of ending their life or lives. [Mrs A] has repeatedly stated this intent if the family is returned to Pakistan. In the first instance, the delegate found that it was the responsibility of the parents to ensure the safety and well-being of the applicant children, and that [Mr A] was physically and mentally capable of taking on such responsibility. The Tribunal is not satisfied on the evidence that they have the capacity to do so. It was the evidence of [Mr A] at the hearing that he could not abandon the responsibility for his wife. Further, there is no reliable evidence that the family has any means of support in Pakistan. It is probable that [Mr A] will be required to find employment outside the home to provide for the applicant children and the rest of the family upon return to Pakistan. This will necessitate instances where the applicant children are left in the care of [Mrs A]. Furthermore, it is reported that [Mr A] has himself been receiving ongoing supportive treatment in Australia for depression and anxiety since at least 2016.[23] The Tribunal also finds on the basis of the country information discussed above that he is also unlikely to be able to access treatment upon return to Pakistan. As mentioned, in Australia the family has been able to access various support and intervention services such as FaCS, [Organisation 2], [Organisation 1] and [Organisation 3] and has been reliant upon them. The Tribunal has been able to locate only limited information regarding the availability of such services for families at risk in Pakistan and their effectiveness. UNICEF reports that so far in 2022, 158 children have been able to access child protection services it supports, and that it has a critical funding gap to even meet nutritional services it supports.[24] It is also noted that Save the Children has ceased its operations in Pakistan.[25] The Tribunal is satisfied that the applicant children would be a risk of harm from [Mrs A]. The evidence also satisfies the Tribunal that due to his obligations to provide for the family, his commitment to [Mrs A] and his ongoing medical conditions that [Mr A] would not have the capacity alone to ensure the safety and wellbeing of the applicant children. There is also evidence that [Mr A] himself, when confronted with extremes of [Mrs A]’s behaviour has also dealt with her conduct by way of violence. The applicant children are at risk of harm from those who have the primary responsibility to protect them. Although the paradigm of persecution contemplated by the legislation is primarily persecution by the state or its agents, where the state is not able to provide a level of protection which its citizen are entitled to reasonably expect or condones or tolerates such conduct by private citizens for a discriminatory reason, this can amount to persecution.
[23] [Ms H], psychologist; [Ms D], clinical psychologist; [a named] clinical psychologist; [Mr G], Clinical Nurse Consultant, Western Sydney Local Health District, report dated 24 January 2018. Letter from [Ms M], psychologist, STARTTS, dated 26 October 2021 regarding [Mr A]
[24] UNICEF, Pakistan Humanitarian Situation Report, February 2022,1 April 2022, at page 6
[25] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.111
Due to their ages, the applicant children would themselves have little agency in seeking protection from family violence. The Tribunal thus considered the country information as to the protection offered by the state in incidents of family violence. It is not expected that the authorities in Pakistan eliminate all risk of harm to the applicant children, rather that it provides a reasonable level of protection if not a perfect one. In this regard, the Tribunal has been able to locate limited information regarding the protection available for children from family and domestic violence. DFAT comments in its most recent report that in relation to children that domestic violence is widespread.[26] Of note, laws against domestic violence in Punjab, Sindh, Baluchistan and KPK have been introduced to criminalise honour killings and acid attacks, although the reported enforcement and effectiveness varies[27] and the US State Department records that they are rarely enforced.[28] [Mrs A] herself reported that her uncle was able to kill her cousin when her cousin was aged 16 with impunity. There are reported traditional and cultural norms that influence child protection action, children are expected to be submissive to their parents and the outdated conventional patriarchal system of Pakistan’s tribal society is stated to be a barrier to child protection by its attempts to protect the guilty.[29] According to country information domestic violence often goes unreported due to stigma and lack of privacy for victims, even when they are wealthy or well-connected.[30] Pakistan is a party to the Convention on the Rights of the Child, however the Tribunal notes the comment by DFAT in their most recent report that many human rights are not respected in practice.[31] Also there are a number of human rights commissions established in the country, including the Commission on Minority Rights and the National Commission on the Rights of the Child. However, it is also reported that several of these commissions are dormant or do not meet international standards.[32] The Tribunal has ascertained that there is a Child Protection and Welfare Bureau established in Pakistan and legislation in KPK for the protection of children, the Khyber Pakhtunkhwa Child Protection and Welfare Act 2010. However, upon review this legislation focuses on public acts committed towards children and the legislation has no particular provisions relating to family violence. The preference expressed when making any orders under the Khyber Pakhtunkhwa Child Protection and Welfare Act 2010 are in keeping the child in the care of the family. [33] The legislation has been critiqued because it lacks clarity regarding corporal punishment and domestic violence[34] and commentary on the application of the Act further notes that although it established some legal and institutional structures, effective use of these institutions is yet to be made.[35] DFAT reports generally that according to critics, child protection measures introduced in parts of Pakistan are yet to be effectively implemented.[36]
[26] As above at 3.106
[27] As above at 2.91
[28] US Department of State, Reports on Human Rights Practices for 2019 – Pakistan, 11 March 2022 p.37
[29] Rasool, A., Saani, S. S. N., Khan, I. A., Gul, N., & Abdullah, K. (2021). Child protection laws and role of civil society in Pakistan. PalArch's Journal of Archaeology of Egypt/Egyptology, 18(10), 3541-3549
[30] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.949
[31] As above at 2.31
[32] As above at 2.33
[33] The Khyber Pakhtunkhwa Child Protection and Welfare Act 2010, s 16(4)
[34] Jabeen, T., & Akhunzada, Z. U. (2017). An Assessment of the Staff's Capacity to Implement the Khyber Pakhtunkhwa Child Protection & Welfare Act 2010. Pakistan Journal of Criminology, at 111
[35] Afridi, A. A., Hussain, B., & Ullah, F. (2021). Legal and Institutional Coverage to Street Children in Khyber Pakhtunkhwa. Pakistan Journal of Humanities & Social Sciences Research, Volume No. 03, Issue No. 02 (December, 2020)
[36] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.106
The Tribunal is not satisfied that the state effectively intervenes in matters of family violence, or that laws and services available for the protection of children from family related violence are accessible or implemented. Due to the tribal and patriarchal nature of society, children are expected to be submissive to their parents and there is a condonation of family violence within Pakistan as a private matter. The Tribunal is not satisfied in the evidence that authorities in Pakistan charged with the responsibility to protect children from family violence would not indiscriminately implement or withhold what little legislative and institutional protection that is available to children such as the applicant children. The Tribunal finds that the applicant children belong to the particular social group of children in Pakistan and due to their particular circumstances, they face a real chance of harm.
In addition to their risk from harm within the family, on the evidence there is also a probability that the applicant children will lose what little care and support that they obtained from their mother if returned to Pakistan. This is contemplated either through [Mrs A]’s proclaimed intention of suicide, her record of self-harm and her impulsive behaviour in leaving the family. The Tribunal is further satisfied from the medical evidence that this is not a remote or speculative threat. The Tribunal has already found that [Mr A] will not be in a position to care for the applicant children and their siblings full time without financial support. In these circumstances the applicant children will foreseeably be without supervision, care, and protection other than the eldest sibling, their [age]-year-old sister, for considerable periods. Due to its size and the particular circumstances of their family there is a real probability that the applicant children will be without adequate financial support or secure accommodation. On the evidence the applicant children also belong to a particular social group of children in Pakistan without effective adult or family protection.

Both male and female children are reportedly at risk of sexual abuse in Pakistan. Female children face particular risks from private abuse from family, carers and associates. According to the country information relevant to gender, Pakistan has one of the worst records for gender inequality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.[37] Further, DFAT assessed that girls in Pakistan face a high risk of societal discrimination and violence because of their sex. Additionally, male children in Pakistan are reportedly particularly vulnerable to sexual abuse. Child rape is reportedly common. This includes the customary rape of young boys, which particularly documented in the KPK, the home state of the applicant children, and among the tribal districts.[38] In unpublished evidence from Pakistan, informants considered sex with young boys a matter of pride and a symbol of status. In conservative tribal communities, a boy is perceived as turning into a man when he marries. Before that, boys are considered sexually available to other men. The biological notion whereby a boy cannot get pregnant is often the basis for believing that they remain physically and emotionally unaffected by sexual abuse.[39]
[37] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.89
[38] As above at 3.106
[39] EPAT International, Regional Overview, Combating the sexual exploitation of Children in a South Asia. Evolving trends existing responses and future priorities, September 2017, p 98
Furthermore, the applicant children have additional vulnerabilities as they are of the Shia religion. The evidence is that while in Australia the applicant children have followed their family in the practice of the Shia religion and it is accepted that they would continue to do so if returned to Pakistan. Although Muslims comprise of 96.47 per cent of the population of Pakistan of this an estimated 80–90 percent are Sunni and 10–20 percent are Shia.[40] It is noted that religious freedom conditions in Pakistan are reported to be deteriorating, DFAT comments in its most recent report that religious extremism and intolerance are on the rise.[41] According to the US Department of State in their most recent report on International Religious Freedom, Shia continued to face security threats from extremist groups and social discrimination.[42] Relevant to the applicants, in their home province of KPK the majority of the population of the province is Sunni. The KPK also has a high level of generalised violence.[43] In KPK on 5 March 2022, a suicide bomber reported to be affiliated with IS at a Shia mosque in Peshawar as worshippers attended Friday prayer, killed approximately 64 and injured around 200.[44] According to the Center for Research and Security Studies, 2099 people were murdered in Pakistan because of their religion in the years from 2013 to 2018, and over half of these (1104) were Shia.[45] Shia have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS[46] and extremist Sunni militant groups reportedly view the Shi’ites as “heretics”, “infidels” and “apostates” who should be punished with death. The UK Home Office reports in 2020 that the spread of COVID-19 was blamed on Shia pilgrims returning from Iran, giving rise to hate speech and discrimination targeting Shias. In the most recent report, it is assessed by DFAT that Shia in Pakistan face a moderate risk of sectarian violence although the situation has improved considerably in recent years. They also face a moderate risk of societal discrimination in the form of anti-Shia protests and community violence.[47]
[40] As above at paragraph 3.28
[41] DFAT Country Information Report, Pakistan, 25 January 2022, at 3.31
[42] ‘United States Commission on International Religious Freedom Annual Report 2021’, United States Commission on International Religious Freedom (USCIRF), 21 April 2021, at page 36
[43] In their Quarterly Security Report for Pakistan, the Centre for Research & Security Studies has consistently reported higher casualties from violence in KPK, see ‘Quarterly Security Report Q1 2021’, ‘Quarterly Security Report Q3, July-Sept 2020’, ‘Quarterly Security Report Q2, April-June 2020’
[44] ‘IS suicide bomber of Peshawar mosque was Afghan: police’, Express Tribune (Pakistan), 10 March 2022, ‘Officials claim breakthrough as Peshawar blast death toll rises to 62’, Manzoor Ali and Iftikhar A. Khan, Dawn (Pakistan), 06 March 2022, ‘Dozens of worshippers killed in Pakistan suicide bomb attack’, Guardian, 05 March 2022
[45] Center for Research & Security Studies, Annual Security Report Special Edition 2013–2018, March 2019, pp 57–58
[46] DFAT Country Information Report – Pakistan, 25 January 2022, at 3.60
[47] As above at 3.61
The applicant children’s status of child alone is not determinative of their risk, they have particular characteristics that identify them as members of particular social groups such as children in Pakistan without effective adult or family protection and Shia children in Pakistan without effective adult protection. These characteristics are immutable to the applicant children and they cannot take steps to modify or conceal them. On the country information the risks faced by the applicant children not only include poverty and homelessness, but also a heightened risk of societal violence, exploitation, and sexual abuse. The Coalition for Alternate Report on the International Covenant on Economic, Social and Cultural Rights (ICECSR) noted in an April 2017 report that child labour in Pakistan, ranges from light work to more serious and hazardous work and exists in a number of sectors with varying degrees of prevalence. Most child labour is in informal sectors, mainly agriculture and domestic labour, but can also be found in many manufacturing processes and industries as well. Child labour in Pakistan is manifested in various forms, some more exploitative than others but each affecting a child’s capacity to live a stable physical and emotional life. The more extreme forms of child labour involve children being employed in conditions of slavery where they are forced to work in life threatening conditions.[48] Such violence, physical and sexual abuse, exploitation, and slavery would be considered serious harm to the applicant children.
[48] Coalition for Alternate Report on the ICECSR, The State of Economic, Social and Cultural Rights in Pakistan: A Joint Civil Society Shadow Report on Economic Social and Cultural Rights, April 2017, p14
The Tribunal has again examined the opportunity of protection from the Pakistani state for children at risk in the circumstances of the applicant children. As set out above, it is acknowledged that Pakistan is a party to the Convention on the Rights of the Child, that it has relevant commissions and legislation, however on the evidence they appear to offer little to ameliorate the conditions for children such as the applicant children with little familial protection.[49] UNICEF commented in its 2016 Pakistan annual report in 2016, that nearly 30 years after Pakistan ratified the Convention on the Rights of the Child, no integrated child protection case management and referral system – as aligned with international standards – has been established.[50] The Asia Human Rights Commission reports that child labour is able to continue unabated in the country due to conflicting laws and lack of political will.[51] According to some reports incidents of violence towards children, particularly sexual violence are matters that continue to be viewed as domestic affairs and the police only take action in cases of particular cruelty and violence and the media often tends to report only sensational cases.[52] In Australia the family of the applicant children has had the assistance of various NGOs. According to DFAT, in Pakistan the political environment is generally hostile to international and local NGOs, which are often perceived as a security threat.[53] It is further reported that the face of onerous and opaque registration processes, restrictions on access to sensitive areas, restrictions on travel and long wait times for approval of many international NGOs such as Save the Children have been forced to cease operations in Pakistan.[54] As to whether the applicant children could access some form of institutional support through their schools, it is reported that many children in Pakistan do not receive a quality education[55] and Pakistan stands second in the world for the highest number of out of school children, with 22 million children outside education and alarmingly high rates in the most vulnerable provinces including the home state of the applicant children – the KPK – at 58%.[56] The Tribunal was unable to find information about reliable state or non-state institutions that would offer a reasonable level of assistance to children such as the applicant children. DFAT assessed that children who are victims of violence face a moderate risk of official discrimination in the form of the state failure to prosecute offenders, and a high level of societal discrimination in the form of lack of familial support to report.[57]
[49] DFAT reports lack of adequate access to support services and state protection at 3.108
[50] UNICEF, Pakistan Annual Report 2016, 21 June 2017, p 31
[51] Asian Human Rights Commission, Pakistan: World Day Against Child Labour-Ending child labour requires measures to end poverty, 13 June 2017
[52] World Organisation Against Torture, Rights of the Child in Pakistan, 1 September 2003, available at: 1 April 2022]
[53] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.110
[54] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.111
[55]Asylum Research Centre (ARC), Pakistan: Country Report, 18 June 2018, at 8.1
[56] As above at 8.1
[57] DFAT Country Information Report – Pakistan, 25 January 2022 at 3.113
The Tribunal is not satisfied that the state effectively intervenes or offers protection for the particular social groups of children in Pakistan without effective adult or family protection and Shia children in Pakistan without effective adult protection, from societal violence or exploitation. Neither is the Tribunal satisfied that there are laws and services available for the protection of children from violence or exploitation which are adequately accessible or enforced.
The Tribunal therefore finds that there is a real chance that the applicant children will suffer persecution if returned to Pakistan by reason of their membership of the particular social groups of children in Pakistan, children in Pakistan without effective adult or family protection and female Shia children in Pakistan without effective adult protection. The Tribunal further considers that the risk of harm is not remote or speculative given the current available country information and the applicant children’s particular circumstances.
The applicant children are aged respectively [age], [age] and [age] years, they do not have the agency to relocate, and the Tribunal finds that it is not reasonable, in the sense of practicable, for them to do so. Furthermore, the Tribunal is satisfied in any event that the risk to the applicant children applies to all areas of Pakistan.
For the reasons given above, the Tribunal is satisfied that the first, second and third named applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
DECISIONS
In matter number 1722699, in respect of the applicant [first named applicant], the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
In matter number 1904315, in respect of the applicant [second named applicant], the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
In matter number 2005282, in respect of the applicant [third named applicant], the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1695

12 April 2022

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