1800844 (Refugee)

1800844 (Refugee) [2022] AATA 2846 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr James Brown (MARN: 1382116)
CASE NUMBER:  1800844
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Ann Duffield
DATE:15 July 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 15 July 2022 at 12:57pm

CATCHWORDS
REFUGEE – Protection Visa – Pakistan – particular social group – Pakistani female having conceived child to a man not her husband whilst still married to her husband – Pakistani minor female being conceived out of wedlock – Pakistani female having adulterous relationship – Pakistani female facing honour killing – Pakistani female engaged in love marriage – serious punishments under Islamic law – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 25 November 2016. The delegate refused to grant the visas on the basis that they were not persons to whom Australia owed protection obligations.
The applicants appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicants were represented in relation to the review.
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) (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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants claims that there is a real chance they would face persecution or significant harm on account of the applicant and her daughter being potentially targeted in an honour killing because of her divorce from her husband and the birth her daughter, the secondary applicant, out of wedlock. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The primary applicant claims to be a citizen of Pakistan born on [date]. The secondary applicant, her daughter, was born on [date] in Australia.
The Tribunal is satisfied that the applicants are citizens of Pakistan and do not have citizenship or rights to reside in any other third country. The primary applicant provided a copy of her Pakistani passport and an Australian birth certificate was submitted as proof of the secondary applicant’s identity and country of nationality.
The primary applicant is a Sunni Muslim and entered into an arranged marriage with her first husband on[date] January 2012. They arrived in Australia together on the applicant’s student visa in August 2012. Her husband entered and departed Australia several times, departing for the final time on [date] February 2015. The applicant removed her first husband from her student visa application on 29 January 2016.
The applicant also entered and departed Australia several times with her final arrival being [date] August 2016. The primary applicant married her second husband on [date] November 2016 via proxy. She has not seen her second husband since she left Pakistan in August 2016 and he divorced her in February 2019. She made an application for a Protection Visa on 25 November 2016 and added her daughter, the secondary applicant, to that application on [date] December 2016.
The applicant was enrolled as a student [at a] University at the time of application for a protection visa. She is currently seeking employment and living in Canberra.
The applicant has [specified siblings]. Her parents also reside in Pakistan along with her ex-husband and present (now) ex-husband.
BEFORE THE DEPARTMENT
Protection Visa application
The applicant provided the Tribunal with a copy of the delegate’s decision.
In her application to the department and in her recorded evidence in the delegate’s decision, the applicant claimed the following:
She came to Australia in August 2012 on a student visa with her first husband whom she has since divorced. During their time in Australia the applicant found life with her first husband to be very difficult and when she learned that he was already married to someone else she decided to separate from him. On 29 January 2016 she decided to exclude him from her student visa on which he was a dependent.
The applicant’s first husband was furious and threatened to kidnap and torture her, or to throw acid on her. The applicant requested an emergency visa from the department in order to return to Pakistan to file for divorce (khula). She arrived in Pakistan on [date] May 2016 and filed for divorce on 15 July 2016 which was granted [in] October 2016.
During the divorce proceedings the applicant developed an emotional attachment with [Mr A], a long-time friend. The applicant stayed with [Mr A] instead of her parents during her time in Pakistan and fell pregnant. Upon discovering her pregnancy, the applicant and [Mr A] decided to get married and did so on [date] November 2016. The secondary applicant was born prematurely in Australia on [date].
The applicant states that her ex-husband is still angry about the divorce and will take her to court for having conceived a child whilst still married to him and outside of wedlock to the baby’s father. These are both crimes under Islamic Law.
The family of the applicant’s current husband have threatened them both for having married into a different caste and for having fallen pregnant before marriage. The applicant states that her husband’s family are from the tribal areas of Pakistan and are very conservative; they are also very powerful, and her husband’s uncles have made threats against the applicant to her parents.
The applicant and her husband have not sought assistance from the authorities as her ex-husband has connections in law enforcement and the government. The applicant’s husband is in hiding in Pakistan. The applicant fled to Australia in August 2016 as her visa was still valid.
The applicant cannot relocate to another area as Pakistan is a small country and one cannot hide for long with no or limited resources.
The secondary applicant claims that she will face harm due to being conceived out of wedlock and that she would be separated from her mother if they go to Pakistan.
BEFORE THE TRIBUNAL
The Tribunal has obtained some information about marriage and divorce in Pakistan from the DFAT Country Report on Pakistan and has also considered information on the relevant matters provided by the applicant through her representative.
The applicant has claimed that her first husband was furious and threatened to kidnap and torture her and throw acid on her because she excluded him for her student visa a year after he had departed Australia in February 2015. She has claimed that her ex-husband is keen to take revenge due to the divorce and her subsequent pregnancy out of wedlock. She claims he wants to take her before the court because these two things are considered a crime in Pakistan.
The applicant has stated that her ex-husband and his family will kill her because she had an affair with another man and conceived a child with that man whilst she was still married to him. She states that her current husband’s family have threatened to kill both her and her daughter (the secondary applicant) because of their marriage and the conception of her daughter out of wedlock.
She claims that she sought and received an emergency visa so she could return to Pakistan to file for divorce which she did two months after her arrival in May 2016. In her request for an emergency visa the applicant claimed that she had to appear in the court in person. The divorce was recorded in July 2016 and declared absolute on [date] October 2016. The applicant married her second husband on [date] November 2016 via telephone.
According to the country information provided by DFAT, a woman “must seek the cooperation of her husband to successfully obtain a Khula (divorce)…. without her husband’s cooperation a wife’s only way out of marriage is a fault-based judicial divorce…available grounds for dissolution are limited in number and difficult to prove”. Furthermore, the country information states that a person applying for Khula need not be located within Pakistan and can initiate the process from abroad.
Prior to the Tribunal hearing
Prior to the Tribunal hearing the applicant provided further information, the relevant parts of which are included in the discussion of claims and evidence. Importantly, however, she has declared that she is now divorced from her second husband, [Mr A]. That came into effect on [date] February 2019. She claims that he divorced her because of threats he had received from her first husband and his family as well as his own family.
Tribunal hearing
The applicant told the Tribunal that she had lost contact with her first husband prior to his departure from Australia in February 2015. She said that they had not been living together since around January of that year because he was abusive verbally and emotionally and there was nothing left in the marriage. She claims she found out that he was already married with a child in around late 2014 from her family who had found picture of him with his wife and child on [social media]. She said that their fight about this matter was one of the main things that broke them up.
In response to questions the applicant claimed that she entered into an arranged marriage, not a love marriage, with her first husband. They met [in] 2012 when she was at University here. She said that their respective fathers knew each other. The Tribunal put to the applicant than in the court documents she had provided to the Tribunal it states that her father made uncontested statements to the court that the marriage was a love marriage and did not have the blessing of the family. Asked to explain the discrepancy the applicant said she was not aware of what her father may have claimed to the court, but she maintains that it was an arranged marriage.
Asked to explain the nature of the abuse in her relationship with her husband she said that he was abusive towards her verbally and emotionally and made threats against her. She said that he travelled a lot for work and was not at home all the time. She claimed that he had taken all her important documents including her passport, ID, University records and other original documents so that she could not go back to see her family and she felt trapped. The Tribunal asked her whether she had reported this to anyone and she said that she told her father. Her father’s advice was that she ignore it and continue with her studies. She said he took those things from her shortly after they arrived. She said she only ever received her passport back from him because he threw it at her when they fought in late 2014 about his marriage and child with someone else.
The applicant told the Tribunal that in the intervening period she was still in touch with her husband and hoped that he would choose her over his first wife and wanted to reconcile. The Tribunal asked her why she would want to do such a thing if he had been abusive towards her and made threats. She said that It was what was expected. She did not see her husband or contact him when she returned to Pakistan to visit her family for a month in April 2015. Asked why she didn’t see him or contact him if she wanted a reconciliation the applicant was evasive saying that her family did not know what was going on. She said that he was also living with his first wife and she didn’t want a confrontation. The Tribunal asked the applicant when it was that she finally decided to divorce him, and she said that it was early in 2016 when she realised that he was never going to leave his wife.
The Tribunal questioned the timing of her decision to return to Pakistan in May 2016 and her urgent letter to the Tribunal requesting a visa to travel. The Tribunal put to her that despite deciding in January to divorce her husband she waited until May to travel and suggested that she waited until she received her new student visa before she could travel and there was no need for an “urgent” divorce. She said that she didn’t receive her visa until after she left Australia and she left because she was advised by her lawyer to attend. She said that her husband had refused to divorce her, so she had to be in court herself. The Tribunal put to the applicant that her visa was granted on 17 May 2016, the same day she wrote to the department.
The applicant insisted that she travelled on the advice of her lawyer yet told the Tribunal that she had not had any discussions with her lawyer, instead entrusting her friend and future husband [Mr A] to discuss those matters with him. The Tribunal suggested it would be highly unusual for her not to have discussions with her lawyer about her divorce particularly as she was going to initiate a Khula. She said that she had not planned to initiate a Khula and hoped that her husband her divorce her. Again, the Tribunal suggested that would appear to be an irrational thing to do given the circumstances and the fact that her husband, on her own evidence, was an abusive man and refused to divorce her. She said that [Mr A] handled everything.
In relation to the divorce proceedings, the applicant told the Tribunal that she attended the court only with her lawyer. She said that [Mr A] dropped her off and no family members attended. She claimed that she only told her family about the divorce after it was over and she travelled to see them in late June or early July.
The Tribunal put to the applicant the country information in paragraph 24 above and put to her that her husband would have to cooperate with her in order for her to obtain a Khula. The Tribunal put to the applicant that her husband’s cooperation with the divorce suggested that he was not willing to enter into a confrontation about her wishes. She said that if he had wanted a divorce, he could have done so very simply but refused. She said that the only reason he cooperated was so that he could impugn her character in court and say terrible things about her. She said that during the court proceedings the Judge had to bring him to order because he was shouting bad things at her. She said she remained fearful that he would hurt her as he had promised to do. Asked if there was a transcript of the proceedings the applicant undertook to find out.
After the divorce proceedings concluded the applicant returned to the family home in Dera Ismail Khan. The Tribunal noted that [Mr A]’s family also lived in that city and the applicant agreed. She told the Tribunal that it was around late June or early July that [Mr A]’s family came to her family’s home and confronted them about her relationship with [Mr A]. It was on this occasion that there was pushing and shouting, and her father was slapped by [Mr A]’s uncle. She said she ran to her room and called [Mr A] on her cell phone and he arrived shortly afterwards. She said that the family had threatened to throw bombs on their house and there were other threats to harm them. The Tribunal asked the applicant what the family wanted to achieve from their threats and she said that they wanted her and [Mr A] to end their relationship.
Asked how [Mr A]’s family found out about the relationship she claimed that [Mr A] told one of his brothers. The Tribunal put to the applicant that given the circumstances surrounding their relationship and the fact that she and [Mr A] both feared the grave legal repercussions for a relationship outside marriage whilst she was married to someone else it seemed risky for them to be telling anyone. The applicant claimed that [Mr A] trusted his brother. She told the Tribunal that it was the stress caused by the altercation that morning with [Mr A]’s family that had caused her bleeding and it was only then that she discovered that she was pregnant.
The applicant told the Tribunal that after this incident a Jirka was convened where the two families tried to come to an arrangement. She said that there were many meetings of the Jirka but nothing was resolved. She had left for Australia by this time and didn’t really know what happened except that there was no decision and the matter remained unresolved. She said that her family tried to keep these things from her because they didn’t want to stress her. She also claimed that it was at this time that the police came and arrested her father and put him into jail for one or three months. She said that she was not aware of this until recently but later in the hearing she told the Tribunal that she was at the house when the police came to arrest her father in around August 2016. She said that after her divorce, and to demonstrate how he could hurt her through her family, her husband presented a cheque from her father that was dishonoured. The Tribunal pointed out that the cheque was dishonoured on 20 April 2016, well before her divorce proceedings began in June of that year and that the case had been concluded in January 2020 according to the documents she had provided to the Tribunal.

The Tribunal put to the applicant that it seemed unlikely that her father would be arrested and jailed for several months because of a dishonoured cheque and she insisted that was the case. The Tribunal asked if there was any evidence of her father’s jailing and she said she would undertake to look for some. At the time of this decision the applicant did not provide the relevant evidence.
The applicant has argued that the incident with the cheque is evidence that her ex-husband can continue to hurt her through her father and threaten her because of their divorce. She says that if he continues to harass her even though she’s in Australia she fears deeply for what he might do if she is in Pakistan with her daughter. The Tribunal put to the applicant that if her ex-husband really wanted to hurt her and her family, he need only make it known that she had a child out of wedlock and was pregnant to another man whilst she was still married to him. The Tribunal put to the applicant that the fact he had not done this already was rather evidence that he had no interest in attacking her or threatening her. The applicant said that he had not done that because she was still in Australia but as soon as she returned, he would use his contacts in the police to make sure she was arrested. She was fearful that her daughter would suffer as a result. The applicant also stated that she was afraid that her daughter would be kidnapped by her ex-husband (the father of the child) if she were to return to Pakistan or be murdered.
The applicant explained to the Tribunal the circumstances of her recent divorce from her second husband who is also the father of her daughter.
The applicant told the tribunal that [Mr A] and she had stopped speaking about one month prior to his divorcing her in February 2019. She said that he had been looking very upset and quiet in their last few calls and was always excited to see their daughter. She asked him what was wrong and he told her that their families continued to put pressure on him to leave her. She said that both [Mr A] and [Mr B]’s families were involved in the arrest of her father because of the dishonoured cheque.
She said the divorce would not satisfy [Mr A]’s family because of the shame that was brought upon them and she was extremely fearful of what they might do in relation to her daughter. She claimed that they could do anything to her daughter including kidnap or kill her. The Tribunal asked the applicant how [Mr A]’s or [Mr B]’s family would know that she had returned to Pakistan and she said that they would easily find out because of social media and the fact that they both came from a small city.
The applicant’s personal circumstances are such that she has been unable to accumulate any savings at all since being in Australia. Her daughter’s significant health issues have meant that until recently she has been unable to work very much.
The Tribunal asked the applicant if she thought relocating to another part of Pakistan would be a plausible option for her and she claimed that the families of her ex-husband’s would find her. She said that living anywhere in Pakistan as a single mother would be impossible for her. She said that she couldn’t go and live with other family members as they live close to [Mr B] and his relatives. She claimed that she would be targeted as soon as she arrived. She said that despite her education and English language skills it would be very difficult for her to find a job. She would be discriminated against because of her caste and regional background and getting childcare would be impossible. She had no savings to fall back on and her family would be unable to support her, she would also be targeted as a single mother who had no husband and had conceived a child out of wedlock. To add to these difficulties would be the fact that the families of both her ex-husbands would target her and her daughter for reprisal for bringing disgrace upon their families. She stated she feared for the life of herself and her daughter and held a belief that her ex husband would kill her for dishonouring him and his family through the affair and conception of a child whilst still married to him.
The applicant submitted through her adviser that a return to Pakistan would also necessitate the requirement for the applicant’s daughter to apply for a Pakistani Passport. In the process of doing this the applicant would need to provide documents that would clearly demonstrate that the applicant had conceived her daughter out of wedlock to the father and whilst still married to another man. These are both crimes in Pakistani law. The parties submit that the authorities would know of this and she would be charged as soon as she arrived.
After the Tribunal hearing the applicant provided an additional submission through her representatives. The Tribunal has included the relevant information in its findings and reasons below.
COUNTRY INFORMATION (DFAT Country Information Report – Pakistan – January 2022)
Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.
Article 25 (2) of the Constitution prohibits ‘discrimination on the basis of sex,’ subject to a caveat enabling the state to make laws to ’protect women and children.’ Nevertheless, discriminatory laws exist: a man can legally seek a divorce at any time, while a woman cannot; the legal marriage age for men is 18, while for women it is 16 (except in Sindh where it is 18); and marital rape is not criminalised.
There has been significant legislative progress on women’s rights at the provincial and federal levels in recent years. Laws against domestic violence in Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa, as well as federal laws, have been introduced that criminalise honour killings and acid attacks. The enforcement and effectiveness of these laws varies. Some, such as the acid attack law, have been very effective: once common, acid attacks have decreased by about 80 per cent since 2014, according to in-country sources.
Women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) restricts many women’s personal, social and economic activities outside the home. While women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom, conservative rural communities are much stricter. There are reports of widespread sexual harassment of women and girls in public places, schools and universities. Some, mostly wealthy, Pakistani women have attained senior positions in public life, but their experience is not representative of the general population.
Rates of gender-based violence are high. The Pakistan Demographic and Health Survey 2017-18 found 27.6 per cent of ever-partnered women aged 15-49 had experienced physical violence, mostly at the hands of their husbands. NGOs claim the actual prevalence is much higher. NGOs and government officials report domestic violence has risen sharply during COVID-19.
Gender-based violence often goes unreported due to stigma and a lack of privacy for victims, even when they are wealthy and well-connected. Victims of rape often avoid reporting for fear they will be blamed or killed for ‘dishonouring’ their family, and because attending police stations may put them at risk of further violence. Extremely low conviction rates also discourage reporting of rape and other forms of GBV, as does a lack of female police officers. Domestic violence is commonly seen as a private family issue, and police are often reluctant to intervene. Federal and provincial governments have tried to improve official responses to gender-based violence, including through establishing GBV courts and women’s police stations, available in some major cities. In May 2021, police opened a Gender Protection Unit with a 24-hour hotline in Islamabad, which handled more than 500 complaints in its first three months.
Without support it is extremely difficult for a woman to relocate to escape an abusive relationship. Women who leave their families face physical risk, stigma and steep economic barriers. State-run women’s shelters (darul aman) require a court order to enter and leave and are described as having ‘prison-like’ conditions. Private and NGO-run shelters exist, but they are unable to meet demand. Families often pressure victims to return to their abusers; in some cases, victims are lured into returning and are killed. In Punjab it is possible to obtain a restraining order under the Punjab Protection of Women against Violence Act, 2016. Elsewhere in Pakistan a judge may issue a ‘protection order’ (denial of bail) to protect any victim or witness of a crime, but these are rarely granted.
So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils (see Judiciary, Cruel, Inhuman and Degrading Treatment).
Forced and underage marriage is a widespread problem in Pakistan. Religious minorities are at particular risk (see Christians, Hindus). A frequently-quoted estimate is that about 1,000 forced marriages take place in Pakistan each year. While the marriage age for girls is technically 16, Islamic jurisprudence provides for girls to be married once they reach puberty. Girls as young as 12 have been abducted, raped, threatened with violence and, in some cases, forcibly converted to Islam. In tribal areas, forced marriages are sometimes ordered by traditional jirga councils under a custom known as badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men.
Female journalists, activists and opposition politicians are frequently subjected to online harassment, including threats of physical and sexual violence, on the basis of their sex. Women who participate in the annual Aurat (Women’s) March have been condemned for promoting ‘vulgar’ behaviour and threatened with violence. In 2020, doctored photos of women holding placards deemed insulting to Islam were circulated online, drawing threats and hate speech. See also NGOs, Media and Journalists.
Militant groups such as the TTP have attacked female teachers and school students due to their ideological opposition to female education. The 2012 shooting of prominent female education activist Malala Yousafzai while she was travelling on a school bus in Swat was a direct response to a series of media interviews in which she argued that girls had a right to education and condemned the TTP. Attacks on girls’ schools continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan. A significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.
DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.
Sexual relations outside of marriage are prohibited under the 1979 Hudood Ordinances, and considerable social stigma attaches to children born out of wedlock, who are considered forbidden under Islam. Without a father’s name, such children have no rights to inheritance and cannot be registered with NADRA unless formally under state guardianship in an orphanage. Abortion is illegal in Pakistan, and children born out of wedlock are reportedly sometimes killed (emphasis added).
Under the Hudood Ordinances, courts can theoretically sentence people to punishments including amputation, whipping and stoning, although whipping was abolished under the Abolition of the Punishment of Whipping Act (1996) and sentences of amputation or stoning have never been carried out. Under the Anti-Rape Ordinance (2020), courts can order forced chemical castration for convicted rapists.
Traditional justice mechanisms such as jirgas (see Judiciary) can hand down punishments, including stoning, amputations, and ‘blackening’ of faces with ink as a form of public humiliation. While increasingly rare, some of these punishments (outside the court system) are still carried out. In 2019, police in Balochistan investigated reports a 10-year-old girl had been stoned to death on the orders of a jirga in Khirthar. The girl’s family claimed she had died in a landslide. In 2021, two alleged drug dealers had their heads shaved and faces blackened and were paraded on donkeys on the orders of an Aman (‘peace’) council in Khyber Pakhtunkhwa.
In August 2017, a teenage couple in Karachi were electrocuted to death on the orders of a jirga after attempting to elope. Jirgas may also order forced marriages (and in some parts of Pakistan, rape or ritual humiliation of women) under a custom known as badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men.
DFAT assesses that, while juvenile status alone is not a determinant of risk, children of both sexes face a moderate risk of domestic and societal violence, and sexual abuse, in Pakistan. Poor, culturally and geographically isolated, disabled, illegitimate or orphaned children are particularly vulnerable and lack adequate access to support services and state protection. DFAT assesses children who are victims of violence can face a moderate risk of official discrimination in the form of state failure to prosecute offenders, and a high level of societal discrimination in the form of a lack of familial support to report violence.
Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate.
For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
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 (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadisand Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.
Tribunal assessment and findings of fact
The Tribunal found the applicant to be a credible witness. Her claims were consistent and candid. She did not seek to embellish or conceal.
Country information indicates that adulterous, divorced, single women with children conceived out of wedlock in Pakistan suffer systematic and severe discrimination, along with the children themselves, who are sometimes killed. State protection for women with the characteristics of the applicant and her daughter are limited due to under-resourcing, corruption, socio-economic factors and lack of political will.
The applicant has been divorced twice now. Her child was conceived with her second husband whilst she was still married to her first. She comes from Dera Ismail Khan in the Khyber Pakhtunkhwa province in Northern Pakistan. Her second husband is also from this city. This is a socially and religiously conservative area where her circumstances and situation are known by the families of both her ex-husbands and her own family. The applicant and her daughter suffer multiple levels of vulnerability due to their gender and the applicant’s breach of not just societal norms in a deeply conservative tribal area, but Islamic law.
The Tribunal accepts the applicant’s deeply held fears that her first husband will either kill her or pursue her in the courts or both if she returns to Pakistan because she has broken Islamic Law by conceiving a child to another man whilst still married to him and for having an affair whilst still married to him. She holds a deep subjective fear that he will follow through on his threat to kill her or throw acid on her because she divorced him and dishonoured him. The Tribunal has expressed some doubt that, given the passage of time, it would be likely that her ex-husband would still choose to pursue her in such a way. Having said that however, the Tribunal cannot disregard even a slim chance that the applicant’s ex-husband would pursue such action and thus put her, and her daughter, the second applicant, in harm’s way.
The Tribunal accepts that it would be impossible for her to return to her home state with her daughter and for them both to be safe from harm. Aside from the potential harm faced as a result of her first (ex) husband’s threat to kill her and to pursue her through the courts, the applicant and her second husband are still the subject of what appears to be an unresolved Jirga. The applicant claims to have not been contacted by her second husband since the divorce. She has suggested that he may have been threatened with harm or even actually harmed because of their marriage and the birth of their child and implied that his “disappearance” may be the result of the Jirga.
The Tribunal has no way to confirm that the applicant’s fear of her second husband’s disappearance is well founded or mere speculation but acknowledges that it is not impossible since he was also a party to the adulterous relationship and fathered a child with a woman still married to another man.
She has told the Tribunal that she cannot relocate to another part of Pakistan because she would be found by her previous husbands and/or their families and she and her daughter would never be safe from serious harm. Furthermore, she has no means of financial support in Pakistan. Her family do not have the means to support her and given her personal circumstances (being a single mother with a child conceived out of wedlock) and widespread discrimination against persons from her regional background, it would be extremely difficult for her to find work to support herself and her daughter.
Is the applicants’ fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion as required by s.5J(1)(a)?
The Tribunal has discerned that the applicant claims to have a well-founded fear of suffering persecution for convention reasons if she is returned to Pakistan for the cumulative reasons of:
a.Membership of the particular social group “Pakistani female having adulterous relationship”
b.Membership of the particular social group “Pakistani female having conceived child to a man not her husband whilst still married to her husband”
c.Membership of the particular social group “Pakistani female engaged in love marriages”
d.Membership of the particular social group “Pakistani female facing honour killing”
e.Membership of the particular social group “Pakistani minor female being conceived out of wedlock”

When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
The applicants fear serious harm including death from her ex husband and his family members because she transgressed Islamic Law by firstly having an affair whilst married and secondly by conceiving a child to another man whilst still married to her first husband. These transgressions also impact the safety and security of the second applicant. They also fear harm from the Pakistani authorities because of those transgressions which attract serious punishments under Islamic law.
On the basis of their evidence and claims the Tribunal accepts the applicants have a subjective fear as claimed. The primary applicant gave consistent, credible and compelling oral testimony to the Tribunal of her fear and concerns for herself and her daughter. She has not returned to Pakistan since August 2016 and the Tribunal accepts that her return to Pakistan with her daughter would ignite the revenge she has described from her first ex-husband, in the form of threats to kill her and also to take her to court. The secondary applicant is now [age] years old and has suffered severe health issues over the course of her young life as a result of her premature [birth]. According to the country information above she would suffer severe discrimination in relation to her access to education and health services such that she would suffer serious harm.
Considering the above matters individually and cumulatively the Tribunal concludes that there is a real chance, in the sense of one that is not far fetched or remote, that both the applicants will face serious harm, including potentially murder or significant physical ill treatment at the hands of either the applicant’s first ex-husband and his family, and/or the Pakistani authorities for reasons of their membership of one or all of the particular social groups addressed in paragraph 71.
The Tribunal has considered whether the applicants can relocate to another area of Pakistan and accepts the primary applicant’s arguments that her circumstances, and that of her daughter, would be impossible for them to conceal themselves from those who seek to harm them, including the authorities. According to DFAT, certain types of threats (such as honour killings) are persistent, and even if people relocate, they can be tracked down and killed years later. Indeed, this is precisely the fear the applicant holds for herself and her daughter in particular. Her first husband has demonstrated that he will use whatever means at his disposal to hurt the applicant and should she arrive in Pakistan with her daughter the Tribunal is persuaded that there is a real chance he would be motivated to follow through on his threats to kill or harm her.
The applicant is a single mother with a [age]-year old daughter; internal relocation may be possible if she had support from her family or a male guardian in the place of relocation. The applicant has none of those safety mechanisms in place nor is she currently in a position to be financially secure should she be required to return to Pakistan.
According to a representative from the Human Rights Commission of Pakistan (HRCP), cited in 2012, it was ‘next to impossible’ for a single woman to live alone in Pakistan due to prejudices against women and economic dependence. Sources consulted by the Research Directorate of the Canadian Immigration and Refugee Board (IRB) in 2010 described difficulties for single women renting property in urban areas, citing security concerns and social constraints. Divorcees faced stigmatization and social rejection.( Refworld | Pakistan: Circumstances under which a woman has the legal right to get a divorce through the courts (judicial divorce) through her own initiative; circumstances under which single women can live alone)
In any case, the Tribunal is satisfied that the applicants continue to be at risk of an honour crime and that the real chance of serious harm relates to all areas of the country.
The Tribunal has considered whether the applicants could seek protection against such persecution described from relevant state authorities. If effective protection measures are available to the applicants against the persecution feared, then fear is not well-founded.
On the basis of country information, the Tribunal finds that police capacity in Pakistan is limited. Additionally, while there is a criminal law in respect of honour crimes it has been widely seen as inadequate and ineffective in preventing these crimes. The country information suggests that police and local authorities tolerate or condone such crimes in their actions, or lack thereof, precisely because they are crimes against persons who have transgressed in the manner of the primary applicant.
On the basis of the evidence the Tribunal accepts that the authorities in Pakistan, and in particular the local and state authorities in the applicants’ home region are not willing and able to protect members of the identified particular social group nor the applicants individually as members of that group.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations.
CONCLUSION
For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Ann Duffield
Senior 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 2846

15 July 2022

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