1727372 (Refugee)

1727372 (Refugee) [2022] AATA 1974 (10 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727372
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Tamara Hamilton-Noy
DATE:10 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(aa) of the Migration Act;
(ii)that the second, fourth and fifth named applicants satisfy s.36(2)(c)(i) on the basis of membership of the same family unit as the first named applicant; and
(iii)that the third named applicant is not owed protection on the basis he is not a non-citizen in Australia.

Statement made on 10 May 2022 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – fear of harm from brother, recently converted to Shiism, other family members and community – threats and ceasing of financial support – possibility of relocation – complementary protection – real risk of significant harm – state protection limited in practice – members of family unit – children born in Australia – oldest child now Australian citizen, so not owed protection – developmental condition, health care, education and social support – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1)(a), (5), 36(2)(a), (aa), (c)(i), (2A), 65
Migration Regulations 1994 (Cth), r 2.08, Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first named applicant] (the applicant wife) and [the second named applicant] (the applicant husband) first arrived in Australia [in] November 2010 on a vocational education and training sector visa.
The third named applicant, [Child 1], was born in Australia on [Date 1].
The applicant wife, applicant husband and [Child 1] left Australia for Pakistan [in] March 2013 and returned to Australia [in] April 2013.
The fourth named applicant, [Child 2], was born in Australia on [Date 2].
The applicant wife, applicant husband and applicant children [Child 1] and [Child 2] lodged a claim for protection on 13 March 2015.
The fifth named applicant, [Child 3], was born in Australia on [Date 3] and was added to the application under r.2.08.
On 26 October 2017, a delegate of the Department refused to grant the applicants a protection visa. The applicants applied to the Administrative Appeals Tribunal on 7 November 2017 for an independent review of that decision.
Claims and Evidence
Evidence before the Department
In her written protection application, the applicant wife said that she was born in Multan, Punjab and that both of her parents are citizens of Pakistan. The applicant wife stated that she speaks, reads and writes English, Urdu and Punjabi. She stated that she is a Sunni Muslim. She stated that she was married to the applicant husband in May 2009 and that her parents, brother and the applicant husband’s family all reside in Pakistan.
The applicant wife said that she had left Pakistan for higher studies, during which time she was sponsored by her brother. It is difficult for her to return as she is receiving threats from her brother and other family members. Her brother had recently converted to Shiism and is supported by the Shia community and they can kill her and her family. The applicant wife stated she had not experienced harm in Pakistan. She had not tried to relocate because it is not easy to seek safety in Pakistan because safety and security are an issue and the Shia community are spread around the country. The applicant wife stated that she has received threats from her brother and other family members and she could be killed and will face social and financial problems. The main threat is her brother who has borne her expenses in Australia and is continuously threatening her about conversion of her religion. She does not believe the authorities can protect her because safety and security is an issue in Pakistan and security officials are also hit by terrorism.
The applicant husband said that he was also born in Multan, Punjab. He stated that he is Sunni Muslim and that his parents, brother and sister-in-law all reside in Punjab. The applicant husband raised the same claims as the applicant wife had in her protection application.
The applicant children indicated in their applications that they are not raising their own claims for protection.
The applicants provided to the Department a letter prepared by a mental health practitioner dated 1 July 2017 relating to the applicant husband’s referral for counselling; documents relating to [Child 1] prepared by ‘[Organisation 1]’, a psychological assessment, a developmental paediatrician, [Suburb] Primary School, [Organisation 2], the [Hospital] and [Community Health Service]; and a translated copy of a First Information Report dated 20 March 2015. The contents of these documents are discussed further below.
The applicants attended a Department interview on 3 July 2017. The Tribunal had access to a recording of the interview and relevant parts of the interview are referred to further below.
A delegate of the Department accepted that the applicants are Sunni Muslims, that the applicant wife’s brother, [Mr A], had provided money to her to get married and to pursue education in Australia and that the applicant wife’s brother ceased his financial support when the applicants refused to convert from Sunni to Shia Islam. The delegate accepted that [Mr A] had converted to Shia Islam, had made threats to the applicants and that the rest of the family may have put pressure on them to convert. The delegate did not accept that anyone other than [Mr A] had threatened to harm the applicants. The delegate found that the applicant wife has a subjective fear of harm from her brother, that the harm feared amounts to serious harm and that the harm feared is for reasons of the applicant’s religion. The delegate had regard to relevant country information and found that the information does not suggest that Shias are forcibly converting Sunnis to their religion, was not satisfied that the ‘Shia community’ supporting [Mr A] is a Shia militant group, and found that the likelihood of the applicant wife being forcibly converted was much lower than for an individual who is uneducated, poor and from a religious minority group. The delegate was not satisfied that [Mr A] would act on his threats given the applicant husband’s family continued to live in the area and have not been harmed despite threats they have received. The delegate further found that the applicants could relocate to a major Pakistani city to get away from the applicant wife’s brother’s harassment and there is no evidence they would be denied state protection for a Convention reason. As to the health issues of the applicant husband and [Child 1], the delegate found that these are health issues that ordinary Pakistanis could face and there is no evidence that they would be denied care for a Convention reason. The delegate was not satisfied the applicants’ fear of harm is well-founded. The delegate found that the applicants are not owed complementary protection because, having regard to the same country information, they were not satisfied there is a real risk they applicants would face significant harm upon return to Pakistan.
A copy of the delegate’s decision was provided by the applicants to the Tribunal.
Evidence before the Tribunal
On 12 April 2021, the Tribunal wrote to the applicants stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicants were invited to attend a hearing at the Tribunal’s Melbourne Registry on 13 May 2021.
On 12 April 2021, the applicants’ representative wrote to the Tribunal requesting an adjournment on the basis of other commitments. The adjournment request was granted by the Tribunal.
On 3 May 2021, the Tribunal wrote to the applicants inviting them to a hearing at the Tribunal’s Melbourne Registry on 2 June 2021.
On 26 May 2021, the applicants’ representative provided to the Tribunal legal submissions, a statutory declaration prepared by the applicant wife, a translated copy of a First Information Report, medical evidence relating to the applicant husband and [Child 1] and a [Hospital] report in relation to [Child 3]. These documents are discussed further below.
On 27 May 2021, the Tribunal wrote to the applicants noting that due to the Victorian Government restrictions announced on 27 May 2021, the Tribunal was seeking submissions as to whether a conversion of the hearing to a video hearing by MS Teams was appropriate.
On 27 May 2021, the applicants’ representative wrote to the Tribunal requesting an adjournment of the matter, on the basis that they lacked the video technology for a video hearing. The request for an adjournment was granted.
On 21 June 2021, the Tribunal wrote to the applicants inviting them to a hearing in the Tribunal’s Melbourne Registry on 27 July 2021.
On 20 July 2021, the Tribunal wrote to the applicants stating that due to the extension of the Victorian lockdown, the Tribunal hearing would be postponed again.
On 5 August 2021, the Tribunal wrote to the applicants inviting them to a hearing in the Tribunal’s Melbourne Registry on 25 August 2021.
On 16 August 2021, the Tribunal wrote to the applicant stating that due to a further extension of the Victorian lockdown, the Tribunal hearing would be postponed again.
On 6 January 2022, the applicants’ representative wrote to the Tribunal stating that the applicants were seeking the matter proceed by video given they had purchased a laptop with MS Teams capability.
On 13 January 2022, the applicants were invited to a hearing by MS Teams video on 9 February 2022.
On 2 February 2022, the applicants’ representative provided updated country information to the Tribunal.
The Tribunal hearing was held on 9 February 2022 by MS Teams Video. The applicant wife and applicant husband gave evidence separately at the hearing and the applicants’ representative was present during the hearing. The Tribunal was assisted during the hearing by an Urdu interpreter. The audio and video were clear throughout the hearing and the Tribunal was satisfied that the applicants had an opportunity to give evidence and present arguments throughout the hearing.
On 21 February 2022, the applicant’s representative provided to the Tribunal further written submissions and media reports, the relevant parts of which are discussed further below.
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment, Reasons and Findings
Country of nationality
The applicant wife and applicant husband travelled to Australia on Pakistani passports and have at all times claimed they are citizens of Pakistan. The Tribunal accepts the applicant wife and applicant husband are Pakistani citizens and has assessed their claims against Pakistan as their country of nationality.
The applicant children [Child 2] and [Child 3] were born in Australia and are the children of Pakistani citizens. The Tribunal accepts that the children’s claims are also to be assessed against Pakistan as their country of nationality.
The Tribunal’s findings relating to [Child 1]
The Tribunal accepts that [Child 1] was born in Australia in [Year 1] and that he obtained a Pakistani passport after birth.
The Tribunal accepts the evidence given by the applicant wife at hearing that [Child 1] obtained Australian citizenship in [Year 2]. The Tribunal notes that both the test for being recognised as a refugee and as an individual owed complementary protection require that an individual is a ‘non-citizen’. The Tribunal finds that [Child 1] does not meet this requirement and finds therefore that he is not owed protection under either s.36(2)(a) or s.36(2)(aa).
Refugee claims
The Tribunal found the applicant wife to give her evidence at hearing in a clear manner and the details she provided about her background were consistent with those she had previously provided to the Department.
The Tribunal accepts that the applicant wife was born in Multan, Punjab and that her household consisted of her parents and one brother. The Tribunal is prepared to accept the applicant wife’s evidence that her mother, brother, brother’s wife and children are living in the house she grew up in in Multan and that her father passed away in January 2021. The Tribunal accepts that the applicant wife’s father owned land which has been passed on to her brother when the applicant was young and that the applicant’s brother now owns the house that he and the applicant wife’s mother are living in.
The Tribunal accepts that the applicant wife speaks, reads and writes in Punjabi, Urdu and English. The Tribunal accepts that the applicant wife attended high school in Multan, then undertook a Bachelor of [Subject 1] and then a Master of [Subject 2]. The applicant wife told the Tribunal that she did not have work in Pakistan apart from small jobs, and that she completed her masters degree one to two years before she was married. The applicant wife gave evidence of having completed a range of studies since arriving in Australia which have included studies in [Subject 3] and [Subject 4], but stated that she has not worked in Australia as her situation ‘kept changing’ and she had children and, particularly with [Child 1]’s needs, it has been impossible to do other things. The Tribunal is prepared to accept that the applicant wife and applicant husband were married in 2009 from a love match.
As to the family’s claims about their fear of returning to Pakistan, the Tribunal finds that the applicant wife’s evidence given at the hearing was consistent with the information she had previously provided to the Department. The Department accepted – and the Tribunal similarly accepts – that the applicant wife’s brother converted to Shiism in November 2014, after the applicant wife had arrived in Australia. The applicant wife gave what the Tribunal considered to be plausible and clear evidence about her brother’s conversion following contact with a range of school mates who follow Shia Islam and of a series of telephone conversations between herself and her brother in which her brother was increasingly overt in his attempts to have the applicant wife also convert. The Tribunal accepts the applicant wife’s claims that her brother initially funded her travel to and study in Australia but that this financial assistance was withdrawn after the applicant wife’s brother converted to Shia Islam.
The applicant wife gave plausible and credible evidence about the pressure upon her parents to also convert to Shia Islam. The Tribunal accepts that, between November 2014 when the applicant wife’s brother converted to Shia Islam and March 2015, when the claim for protection was lodged, the applicant wife had a series of telephone conversations with her brother and her parents and that the protection application was submitted a month after the applicant wife’s parents were forced by her brother to convert to Shia Islam. The Tribunal makes no adverse findings about any delay between the applicant wife first arriving in Australia and her claim for protection.
The applicant wife claims to fear harm from her brother if she returns to Pakistan. Her representative has provided media reports about honour killings in Pakistan, in particular an instance of an honour killing of a female by her brother after she posted pictures on Facebook.[1] The Tribunal accepts that honour killings are common in Pakistan, with an estimated 1,000 occurring each year and that the majority of victims are female. Victims are reported to remain at risk even if they relocate, with victims having been killed years after the initial transgression in some cases.[2]
[1] Al Jazeera, ‘Pakistan Court fees man convicted of honour killing of sister’, 14 February 2022 at
[2] DFAT Country Information Report Pakistan, 25 January 2022, at 3.96.
Other country information considered by the Tribunal, however, indicates that internal migration within Pakistan is widespread and common. Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations and offer some anonymity for people fleeing violence by non-state actors.[3] The law provides for freedom of movement, subject to certain restrictions such as some areas being limited for security reasons, and all main cities are connected by major highways.[4] The UK Home Office assesses that, where an individual fears harm from a non-state actor, they will generally be able to relocate to escape that risk.[5]
[3] DFAT Country Information Report Pakistan, 25 January 2022, at 5.23 & 5.24.
[4] UK Home Office Country Policy and Information Note, ‘Pakistan: Background information including internal relocation, at 2.3.5.
[5] UK Home Office Country Policy and Information Note, ‘Pakistan: Background information including internal relocation’ at 2.3.2.

The Tribunal has accepted that the applicant wife’s mother, brother and brother’s family are residing in Multan. The Tribunal finds that the applicants would be unable to return to Multan due to a fear of harm from the applicant’s brother, given their refusal to convert to Shia Islam. The Tribunal finds that the applicant wife does not have any contact with her brother and that she speaks to her mother, by leaving a missed call and then her mother phones her back when she feels it is safe to do so. The Tribunal finds that the applicant wife’s mother would not advise the applicant wife’s brother if she returns to Pakistan, given the secretive nature of their communications since the applicant wife’s brother has converted to Shia Islam. The Tribunal finds that the applicant wife’s brother would be unlikely to become aware if the applicants return to Pakistan.
The Tribunal notes that internal relocation within Pakistan is widespread and common. The Tribunal considers that the applicants would be able to reside in another large city such as Islamabad to avoid the harm feared by the applicant wife’s brother. The Tribunal finds that Islamabad is accessible and is not so physically uninhabitable or inhospitable that the applicants would face serious harm for other reasons, having regard to the instances of serious harm in s.5J(5), or that any hardship they would face is for one of the reasons set out in s.5J(1)(a).
Having regard to the prevalence of internal relocation within Pakistan and the ability of the applicants to reside in another large city such as Islamabad, which would offer anonymity to them, the Tribunal is not satisfied that the risk of harm to the applicants relates to all areas of Pakistan. The Tribunal is not satisfied that the applicants are owed protection under s.36(2)(a).
Complementary protection claims
The applicant’s representative submits that the applicants are owed complementary protection on the basis of the impact of [Child 1]’s diagnosis on the family unit. In considering whether the applicants are owed complementary protection under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk they would suffer significant harm. The Tribunal has found that the applicants are nationals of Pakistan and finds that Pakistan is the ‘receiving country’ for the purposes of their complementary protection claims.
The Tribunal notes that the threshold of the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal notes that ‘significant harm’ for purposes of complementary protection is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ are further defined in s.5(1) of the Act.
For the reasons set out above, the Tribunal has accepted that the applicant wife faces a risk of being threatened, assaulted or killed by her brother if she returns to Pakistan. The Tribunal accepts the applicant wife faces a real risk of significant harm from her brother on return to Pakistan and that the harm feared involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant wife. The Tribunal is satisfied that the harm the applicant wife would be subjected to amounts to cruel or inhuman treatment or punishment as defined in s.5(1). The Tribunal finds that the threat of harm is particular to the applicant wife, as a family member of an individual who has converted to Shia Islam, and is not satisfied the applicant wife’s brother would seek to target or harm the applicant husband or applicant children if they return to Pakistan.
As to whether the applicant wife could obtain protection from Pakistani authorities such that there would not be a real risk she would suffer significant harm, the Tribunal notes that while Pakistan’s legal framework provides for protection of property and lives, state protection in practice is limited. DFAT assesses that this is due to under-resourcing, corruption, socio-economic factors and lack of political will.[6]
[6] DFAT Country Information Report Pakistan, 25 January 2022, at 5.1.
The Tribunal further notes that Pakistan has one of the worst records for gender equality in the world and in 2021 it ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health, survival and political empowerment.[7] Women’s participation in Pakistani society can be heavily curtailed depending on their social circumstances. Observation of purdah, the practice of segregating women from unrelated men, restricts many women’s personal, social and economic activities outside the home. There are reports of widespread sexual harassment of women and girls in public places, schools and universities.[8] 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 considered to be particularly vulnerable and to lack access to support services.[9]
[7] DFAT Country Information Report Pakistan, 25 January 2022, at 3.89.
[8] DFAT Country Information Report Pakistan, 25 January 2022, at 3.92.
[9] DFAT Country Information Report Pakistan, 25 January 2022, at 3.100.
Given the position of women in Pakistan, the level of discrimination and violence they face, and the lack of state protection available, the Tribunal finds that the applicant wife could not obtain from authorities in Pakistan protection such that there would not be a real risk that she would suffer significant harm.
As to the question of relocation, the Tribunal accepts that the child [Child 1] is now [Age] years of age and that the applicant wife’s concerns about him as a young child included that he had delayed speech, an inability to follow some tasks and was not active. After being placed in kindergarten, his teacher raised concerns about possible autism and he was diagnosed at four and a half years of age. The Tribunal accepts that [Child 1] has had a teacher’s aide throughout his primary school years and that he is due to commence high school in 2023 and the applicant wife is hoping to keep him in mainstream schooling. The Tribunal accepts that [Child 1] is identifiable as autistic because of his behaviours and his hand movements.
The Tribunal accepts that the applicant husband has worked in a [Workplace] and [Doing a job task] since living in Australia. The Tribunal is prepared to accept that the applicant husband had an accident while [Doing a job task] in February 2015 and that, following the accident, the family were reliant on Red Cross support. The applicant husband did not work for six months as his licence was cancelled due to him having seizures and he then returned to work on a part-time basis. The Tribunal is prepared to accept that the applicant husband had a heart attack on Boxing Day in 2016, following which he was hospitalised and then returned to work.
The Tribunal finds that [Child 1] would return to Pakistan with the applicants, on the basis that he would not have any family members remaining in Australia who would be able to provide care to him. The Tribunal finds that the applicant wife would be unable to work on the basis of [Child 1]’s care needs, if the family returns to Pakistan now or in the reasonably foreseeable future, given [Child 1] is still of a young age and will require additional care into the foreseeable future. The Tribunal finds that the applicant husband has suffered health issues since residing in Australia which have, over a prolonged period of time, limited his work capacity. The Tribunal finds that the family would be reliant on the applicant husband’s earnings in Pakistan, given the applicant wife’s inability to work due to her caring responsibilities.
Pakistan is described as a lower-middle income country, whose economy has grown slowly over recent decades. The COVID-19 pandemic and government measures to curtail the impact of the pandemic have had a significant impact on the economy. The World Bank has estimated that half of the working population of Pakistan either lost their jobs or faced reduced hours and that 40 per cent of households suffered moderate to severe food insecurity, with the national poverty rate standing at 24 per cent during 2020. Post-pandemic growth is expected to be gradual, with sectors such as agriculture expected to remain weak and poverty to remain high.[10] Pakistan’s main welfare program is the Benazir Income Support Program which was launched in 2008. Its benefits are mostly disbursed to eligible women and the former government expanded the categories of assistance provided to the poorest people, including needy families affected by COVID-19. An average of PKR 1000 (approximately $8 AUD) has been disbursed to 5.6 million families.[11]
[10] DFAT Country Information Report Pakistan, 25 January 2022, at 27 & 2.8.
[11] DFAT Country Information Report Pakistan, 25 January 2022, at 2.9.
There is a shortage of housing across Pakistan, with housing said to be generally unaffordable, largely due to poverty and a lack of housing finance. An estimated 30 to 50% of households are estimated to be living in katchi abadis (slums). The majority of these are described as unregularized, informal settlements with inadequate access to public services, infrastructure and social facilities.[12] The UN Habitat program describes poverty in urban areas as being a major and visible phenomenon, with six out of the top ten major cities having double digit poverty figures.[13] In addition to rates of poverty, the UN Habitat reports that there are shortages of basic services such as water, power and sanitation, in the urban regions,[14] and that access to clean water continues to be a major problem in Pakistani cities.[15]
[12] UK Home Office, Country Policy and Information Note, ‘Pakistan: Background information, including internal relocation’, June 2020 at 2.3.6.
[13] UN Habitat, ‘The state of Pakistani cities’, 2018, at p1.
[14] UN Habitat, ‘The state of Pakistani cities’, 2018, at p46.
[15] UN Habitat, ‘The state of Pakistani cities’, 2018, at p47.
Health care in Pakistan is provided by a combination of public and private hospitals, clinics and GPs and the overall standard and availability is described as low, but generally better in cities than in rural areas. Up to 70 per cent of health care costs are borne as out-of-pocket expenses by patients and catastrophic health care expenditure can push households into poverty.[16]
[16] DFAT Country Information Report Pakistan, 25 January 2022, at 2.10 to 2.12.
A 2019 study, on which submissions were made by the applicants’ representative, looked at the impact on mothers of children with autism spectrum disorder, most of whom were part of the middle and upper-middle class in Karachi and who could afford the extensive therapies their children required. The study found that a number of the mothers had internalised negative comments and had been socially isolated for a period of time as a result, and that several had gone through a lengthy process to find suitable schooling for their children. The study noted that, in other recent studies, social support had emerged as the most beneficial support to mothers and that lower levels of social support for mothers of children with autism spectrum disorder was a significant predictor of stress among mothers and to have a direct relationship with depression and anxiety of mothers.[17]
[17] Cogent Psychology, ‘Coping with autism spectrum disorder (ASD) in Pakistan: A phenomenology of mothers who have children with ASD’, J Furrukh and G Anjum, 16 February 2020 at
The UN Habitat program describes Pakistani cities as not being inclusive, with certain groups deliberately and specifically excluded from various aspects of city life, provision and access, either explicitly or implicitly. The exclusion of the poor by market forces is most visible in terms of housing, land and service provision. The exclusion of women and the physically challenged is less visible, because they are rendered invisible by social mores and bias. Such citizens are often forced into a segregated or secluded existence and become easier to target and to further isolate and exclude.[18]
[18] UN Habitat, ‘The state of Pakistani cities’, 2018, at p3.
The Tribunal finds that, if she returns to Pakistan now or in the reasonably foreseeable future, the applicant wife would return with [Child 1] given [Child 1] has no family members in Australia. The applicant wife does not have family supports in other areas of Pakistan, which would impact her capacity to cope with a child with autism. She has not worked due to her caring responsibilities. The situation in Pakistan at present is dire, with the COVID-19 pandemic having caused a significant impact on the economy which has led to food insecurity, increased poverty rates, a lack of employment and up to half of the population living in slums, many of which have limited access to basic services. The Tribunal finds from the above information that it would not be reasonable for the applicant wife to relocate to an area of the country where there would not be a real risk she would suffer significant harm.
The Tribunal is satisfied on the evidence before it that the significant harm the applicant wife faces is one faced by her personally and is not faced by the population of the country generally, as required by s.36(2B)(c) of the Act.
The Tribunal is satisfied that the applicant wife does not have a legally enforceable right to enter and reside in any country other than Pakistan. The Tribunal finds that the applicant wife is not excluded from Australia’s protection by operation of s.36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant wife is a person in respect of whom Australia has protection obligations and that she satisfies the criterion in s.36(2)(aa).
The Tribunal is satisfied that the applicant husband, applicant child [Child 2] and applicant child [Child 3] are members of the same family unit as a person who is owed protection for the purposes of s.36(2)(c)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the applicant husband, applicant child [Child 2] and applicant child [Child 3] will be entitled to a protection visa provided the criterion on s.36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(aa) of the Migration Act;
(ii)that the second, fourth and fifth named applicants satisfy s.36(2)(c)(i) on the basis of membership of the same family unit as the first named applicant; and
(iii)that the third named applicant is not owed protection on the basis he is not a non-citizen in Australia.
Tamara Hamilton-Noy
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 1974

10 May 2022

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