1725555 (Refugee)

The applicant, a Pakistani woman, sought a protection visa, claiming a fear of harm from her husband's family upon return to Pakistan. The dispute centred on her assertion that she and her three daughters faced persecution due to her inability to produce a male heir, a cultural expectation within her husband's family. The case was heard by Scott Clarey, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, as defined by the Migration Act 1958, and whether Australia had protection obligations towards her. This involved determining if the feared harm constituted "serious harm" and if the reason for the persecution was the essential and significant reason for her fear, and if such persecution involved systematic and discriminatory conduct. Additionally, the Tribunal had to consider whether effective state protection was available in Pakistan and whether it would be reasonable for the applicant to relocate within Pakistan to avoid the feared harm.

The Tribunal found the applicant to be a credible witness and accepted her claims of experiencing physical and mental torture from her in-laws, particularly after the birth of her daughters. It was accepted that her fear of harm, including potential "honour killings" and serious family/gender-based violence, stemmed from her membership in the social group of a Pakistani woman with only daughters, facing pressure for her husband to remarry. The Tribunal considered extensive country information regarding the systemic discrimination and violence faced by women in Pakistan, including the reluctance of authorities to intervene in domestic violence cases and the low conviction rates for gender-based violence. It concluded that effective state protection was not available and that relocation within Pakistan would not be reasonable given the persistent nature of threats from family members and the widespread discrimination against women.

Consequently, the Tribunal determined that Australia had protection obligations towards the applicant and remitted the matter for reconsideration with directions that the applicant satisfied section 36(2)(a) of the Migration Act, and that her children satisfied section 36(2)(b)(i) as members of the same family unit.