1804353 (Refugee)

1804353 (Refugee) [2024] AATA 2652 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Anne Blakeman
CASE NUMBERS:  1804353 1814168
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Genevieve Hamilton
DATE:20 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 20 February 2024 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – women and children in Pakistan – domestic violence – single, divorced, or remarried women – fear of ex-husband – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

These are applications for review of decisions made by delegates of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant is referred to as the applicant mother. The second-named applicant is her daughter, she is referred to as the applicant. The third and fourth-named applicants are the applicant’s children. They are referred to as the included applicants. Collectively they are referred to as the applicants.
The applicant mother applied for a protection visa on 2 May 2016. It was refused on 31 January 2018. The applicant and the included applicants applied for protection visas on 1 June 2016. The delegate in that case refused to grant the visas on 3 May 2018.
The applicant and the applicant mother appeared before the Tribunal on 11 September and 7 December 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
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.
CLAIMS AND EVIDENCE
In her protection application the applicant said she was born in Pakistan (Punjab) on [date] and is a citizen of Pakistan. She married [in] April 2008. She speaks, reads and writes Urdu, can also speak Punjabi and reads and writes in English. Her ethnic group is Punjabi and her religion is Sunni Islam. Her occupation is domestic duties. She separated in June 2009. She was living at [Address 1]. Her brother [Brother A] lives at this address. She came to Australia [in] March 2016 travelling on a Pakistani Passport. She had a visitor visa granted 14 January 2016.
Until December 1999 she lived in Vehari, then at [Address 2] until April 2008, then in [Address 3] until January 2009, and thereafter at [Address 4].
Listing family members she includes her husband [Mr B], born Hafizabad, her father as deceased, her mother and three brothers in Australia, one in New Zealand and one in Pakistan.
Explaining her reasons for leaving Pakistan and seeking protection in Australia, the applicant said “we” have ongoing very serious problems with her husband, in laws and their relatives who have made their lives miserable. She feared for her and her children’s lives. The feud relates to unrealistic demands of money which she cannot fulfil. There are other deep-rooted problems between the families. He every now and then hit her and kicked her out of his family’s home. They sprayed her own family’s home with bullets in an attempt at murder. They threatened to kill her with an exploding gas cylinder. Her mother wanted her to divorce so they threatened to kill her mother as well. They tried twice to seek help from the police but the police refused to even register the FIR, instead harassing and intimidating her brother when he attempted to lodge it. Her husband and his relatives have strong connections with the judiciary, police, politicians and criminals. They can find them anywhere in Pakistan (also they could not relocate because of language differences and ethnic discrimination). Law and order is bad in most partis of the country, with bombings daily, and ethnic killings. The police were corrupt, ill trained and ill equipped.
The included child [the third named applicant] was born [date] in Hafizabad (according to his passport). The included child [the fourth named applicant] was born on [date] in Lahore.
In part B of her application, the question about members of the family unit not in Australia is answered by reference to the applicant’s husband, whose status is described as “married”, and his address is the same house in [Address 3] where the applicant lived until January 2009. In her form 80 the applicant repeated the above address history and in listing family again refers to [Mr B] as her spouse.
In a statement dated 30 May 2016 the applicant said that [Mr B]’s aunt [Ms C] is married to her brother [Brother A]. His first cousin [Ms D] is married to her brother [Brother E]. Consequently the family trapped her into marriage with [Mr B]. Ever since, he and his family have been wanting money from her and from her indirectly and from her brothers directly. Their attitude towards her and her family was one of hatred, discrimination, and abuse of herself. It started with verbal abuse and curses including insulting her father before and after he died, and her child, and her long dead grandfather. She found this shattering. Her husband was the worst. In the six years she was married she spent more than five years at her mother’s house. Both her children were born there although her husband registered their first son as born in Hafizabad which showed how influential he is and that he has powerful contacts.
She would always end up going back to her husband. Sometimes of her own accord but often due to her clan’s insistence, as the issue was discussed and ruled on at the Panchayat many times. Her family, including herself would eventually give in and place their faith in God.
Her life was miserable. Her husband would not allow her to have anything, even plastic containers to store food in. They would demand money from her brothers in Australia, with lies or vague excuses about why they needed it. They started selling her dowry and her jewellery, she resisted and her husband hit her with the encouragement of his family. They are money hungry and would kill people for it. They were acting as fake psychics. They have government jobs but they don’t go to work. The applicant, due to the physical and psychological torture, swallowed a number of Flagyl 400mg tablets.
Over the years her husband beat her more and more severely. She was paralysed with fear. He would kick her out of the house, knowing most of her family was overseas and she had no one to protect her. They would say she could only come back if she brought money from her family. They refused to let her visit her father when he was dying. They made her do all the chores. Her parents were not allowed to visit her and she could not visit them unless she was thrown out of her husband’s house. When her son needed to go to the hospital her husband wouldn’t take him. He threatened to make her and her family miserable if she tried to divorce him, saying that he could influence the court and that the police were in his pocket. She believed this.
When her father died in 2011 her mother said she would keep the applicant with her and apply for a divorce on her behalf, thus attracting the direct enmity of the applicant’s husband and his family. He called her mother and threatened her. Within a couple of days the home was sprayed with bullets. Luckily no one was hurt. Her brother went to the police station to lodge an FIR but they told him to leave immediately or he would be the one in trouble. The house was fired on twice. She was told [Mr B]’s sister’s husband ([Mr F]) has a brother who is a senior police officer and that he could “take care of” her whole family including her brothers overseas. [Mr F] came to Australia in mid-2014 and was trying to meet her brother’s wives in their absence and without their knowledge or consent. Another [relative] works in the judiciary and has very close connections with judges and magistrates. Another [family member] is a senior police officer in Hafizabad. Another relative is in the Punjab police.
The applicant describes her state of anxiety and depression resulting from her experiences. She recounts how the family on several occasions threatened to burn her alive by exploding a gas bottle. For the past two and a half years she had been living at her parent’s home but even then her husband would go there with his male friends and intimidate her and her family.
Her mother decided to come to Australia to seek protection. Her husband encouraged the applicant to go to Australia and ask her brothers and mother to give her share of the family’s assets and lend him money to expand his business. She saw this as a blessing in disguise.
The applicant stated that on arrival in Australia she told her husband she wanted a divorce. He was very angry. The next day (30 April) her home was fired on for the second time. Once again there was an attempt to loge an FIR but it was refused and her brother was threatened. The applicant said this was just a brief history and that each and every moment of her life after she married was a living nightmare.
The applicant submitted the death certificate of her father, her marriage certificate, and the birth certificates of the included applicants. She also submitted a set of photos and cover letter. The photos purport to be of bullet damage to the walls of the house, and it is stated that a glass window had been completely shattered and replaced. The applicant submitted a diagram of [Mr B]’s family with notes relating to her sister in law’s husband [Mr F] and his siblings: [Mr F] working in [specified government department], [Mr G] working in the judiciary ([the] District Courts), [Mr H] working in the Punjab police, [Mr I] in the [specified government department], [Mr J] as a [Occupation 1], and [Ms K] who purports to be a psychic. In her covering letter she said that on both occasions where the house was shot at, which was an attempt to kill her and her whole family, [Brother L] tried to report to the police but they refused to file an FIR and harassed and intimidated him even more.
The then representative lodged a submission to the effect that the applicant had a well-founded fear of serious harm and met the refugee definition. They submitted a number of human rights assessments of the situation in Pakistan, as well as DFAT’s travel advisory, and a number of online news articles about women’s rights in Pakistan, incidents of terrorism and police corruption. They submitted a number of Tribunal decisions related to applicants from Pakistan (one relates to an inter-faith marriage, one to a person from the Ahmadi religious minority, and one to a person with an anti-Taliban profile in the Swat valley). In the course of the processing of the application, the agent submitted a number of further online news articles about the treatment of women in Pakistan.
The applicant mother lodged a request for waiver of the no further stay condition on her visa, due to health concerns of her two daughters in law in Australia. The condition was waived. Then the applicant arrived in Australia and the applicant mother lodged a protection application. In it she said she was born on [date], in Punjab Pakistan, and is a Pakistan citizen. She speaks and reads Urdu and also speaks Punjabi. She supplied the same residential and email address in Australia as the applicant. She stated that [Brother A] helped with the application. She was widowed [in] December 2011. Her Australian contact is [Brother A]. She arrived in Australia [in] August 2015, having travelled on a Pakistani passport. Her address most recent address was [Address 4].
The applicant mother said she left Pakistan because of an ongoing feud with the applicant’s in laws which caused her to fear for her life, her safety and well being. She believed she would be killed if she returned to Pakistan. The applicant mother detailed her claims and related events in similar terms as those put forward by the applicant. She said the applicant was treated like a slave and physically beaten. She said she tried to stop her daughter going back but the Panchayat intervened. She explained that the applicant’s mother in law was her own first cousin, therefore [Mr B] is her nephew. Once the family came over with about 10 people and beat up her son. The applicant called the police but they verbally abused her over the phone. They tried to kill her son many times. After the first child was born [Mr B] came with his parents and tried to snatch the baby and assaulted the applicant’s family. Neighbours intervened but they threated they would come back and “finish us all”. They do not care about the children because they see them as being from the applicant. When more money was refused “they started torturing us”. They kicked, punched and slapped the applicant and herself many times. The applicant mother said she was a widow who had never gone to school and was supported by her children most of whom reside in Australia.
The applicant submitted a copy of an envelope with a Pakistan postage date of 21 February 2017 addressed to the house in [Address 1] (no one is named on the envelope). She also submitted a copy of a handwritten letter which presumably came in the envelope, and which according to its translation says:
[The applicant’s name]! You had said that you will return with the money. But you did not send the money. Maybe, you have forgotten how I made you suffer.
Well, doesn’t matter. How long can you and your mother keep hiding there! Ond day, the two of you will have to come to Pakistan. If I do not shoot you as soon as you step out of the airport, I won’t be worthy of the name [Mr B]. I will kill you and throw you into Ravi River. I will also slit the throats of both children, besides the two of you, because they are also a part of you. You and your family have been lucky that you got away so many times. But I swear by God that I will finish you this time.
You already know how many people here kill their wives on a daily basis. Who does anything about it.
In any case, I have a number of acquaintances in the police and courts. And as for you saying that you have brothers who will save you, I will deal with them, too. I assure you, I will break their legs, too.
You have changed the phone SIMs, haven’t you?
Doesn’t matter. I am just waiting for you to come back to Pakistan. And that day will be the last day of your lives.
[Brother A] made a statutory declaration on 16 October 2017. He said he was aware of the applicant and the applicant mother’s claims and that he had also been subject to verbal abuse, intimidation and harassment on many occasions. He said that in 2010 he was at home and noticed three men and a woman talking to his wife. They said [Mr B] had sent them to take his wife and children away. One day they did take them away from the house. They lied about him and applied for an intervention order. In 2014 [Mr F] came to Australia, and met his wife in his house and elsewhere in his absence. [Brother A]’s declaration goes on to discuss the claims made by the applicants.

The applicant mother’s application was supported by a letter dated 11 October 2017 from [Dr M] from [a named] Medical Centre stating that the applicant is a diabetic and has had a heart attack, and is depressed because her family has been attacked, and she is very concerned about her visa status. There is also a letter from Psychologist [Mr N] stating that he started seeing her on 29 October 2016 (he does not say how many times he has seen her). He said the applicant mother is suffering from anxiety and depression due to family violence. She has no support there and her son who still lives there was threatened as well. It is harder because the families are related. She will better if she has the assurance that her daughter and the children are safe.
The applicant mother lodged her application first and was interviewed on 20 October 2017. She initially appeared not to understand questions including her date of birth. She has two siblings in Vehari but she said she is not in contact with any relatives because of her daughter. Her daughter married into her cousin’s house and they started beating her. They beat her and came to the head of the village. She herself was also beaten and insulted on a number of occasions and on a number of occasions the village head was involved. They were bad people and there were a number of beatings. They had given the applicant 20 lakhs of jewellery but the in laws wanted more and they also wanted the house. Her daughter was very unsettled and took tablets to finish her life but they didn’t tell her parents. The applicant mother went to get her and asked them to let her go. They said they wouldn’t let her go and would put acid on her. They hit her son and broke his front teeth. There are six brothers, they have links with the police and “they all go after us”. [Mr B] said “you won’t be able to do anything because of our contacts with the police”. Her husband consequently got sick and died. “They said they would kill us”.
The in laws had given two daughters to her sons in marriage and wanted one in return. They beat the applicant. They just want to get her money. They didn’t look after her, or her children. They kept asking for money, and the house, saying “go and get money from your brothers”. Throughout the marriage there was constant stress and fighting. She asked for a divorce for her daughter but it was refused, they would rather put acid on her. The applicant mother kept giving them money. At the marriage 300 people turned up when they had only expected 100 and the village head had to get involved. Asked when the problems started, she said so much had happened she couldn’t remember what year.
One night she was sleeping and there was firing at the door and wall. It was because her daughter was with her and “they wanted to kill us”. “They didn’t want my daughter they only wanted money”. They didn’t go to the police the first time because “they don’t listen to us”, in fact they would “misbehave with us” because of the connections.
Her remaining son in Pakistan is getting threatening calls constantly, saying “get your mother and daughter back here so we can shoot them at the airport”. [Mr F] visited Australia. “He came to see us but he didn’t say anything to us”. She could not remember when this was. Her daughter was still in Pakistan at the time. There were no issues when he was here. It was just to show that they could get to us.
Asked why [Mr B] permitted the applicant to come to Australia with the children, the applicant mother said it was to get money. She was told to go and get money from her brothers. The applicant mother was asked twice what [Mr B]’s “connections” were and didn’t answer the question. She said her son in law was “organising” things because “they have given us their daughters”. She then said that it was [Mr F] who has connections, in computers, in the judiciary and police, and with the mafia. Asked if her son [Brother L] had relocated she said he goes to his in laws or they come and stay with him.
She did not recall when the letter arrived, she cannot read it. Asked if her daughter read it to her she did not answer the question. If they went back [Mr B] would kill them. There followed a discussion of relocation and state protection and the applicant mother’s visa application history. She said she didn’t apply for a protection visa on arrival because she was waiting for her daughter.
[Brother A] participated in the interview and essentially echoed the above claims.
The applicant was interviewed on 22 January 2018. She said [Mr B] lives with his mother, two sisters and 3 brothers. She moved to Hafizabad when she married (2008) and then sometimes was going back to Lahore. She has 3 brothers in Australia, one in NZ and one in Pakistan who is married with [number] sons. She married [Mr B] because his family wanted her dowry. She was the only sister. Her older sister in law is the aunty of her husband. That lady’s daughter (i.e. the applicant’s cousin) married another of her brothers. She complied with the dowry list involving amount of gold and gifts for certain people and a vehicle for the husband. They bought 250 guests to the wedding even though her family had budgeted for 150. The issue started with the marriage, and dowry, and money. Each time she was beaten up and sent back to her parents home with more demands. They beat her and sent her there saying she needed to bring back increasing multiples of 10 lakh and dresses for the women. The applicant said she was not allowed to contact her parents privately but was only allowed to tell them what he told her to, and he would record her. He would beat her if she refused to give these demands to her parents. This continued for many years. She had to do all the chores and her mother in law and sisters in law also beat her and called her names and called her parents names as well. At 7 months pregnant she went to her parents home as normal so that they would bear the expenses of the birth. Her brothers were supporting her parents and also meeting the in-laws demands. Her father was unable to work because of his heart. After the baby she begged her parents that she didn’t want to go back. Her parents told the family not to beat her. They criticised her behaviour and said that was why she was being beaten.
Asked why she came to Australia when she did, the applicant said her husband sent her here to get more money. The applicant said her only problem was with her husband and his family. He has a lot of relatives with high profile such as the police and in [government] department. The police were on his side. In December 2011 her father died and she said she didn’t want to go back to her husband and asked for a divorce. He threatened her, saying he would not divorce her but he could kill her.
Asked why her brothers sponsored the aunt/cousin if this was going on, the applicant said she did not know when they came. She supposed they were hoping things might get better. Asked what her brother did to do make things better, she said he told them not to “bash my sister”. But a divorce is considered worse than domestic violence. Asked again what her brothers did to help her the applicant did not really answer but talked again about financial demands and transfers. Asked how much money had been given to them since 2008 the applicant said they borrowed 32 lakhs and sole her jewellery. Asked if there was any evidence of transfers the applicant said her father used to hand them the money physically. And her brothers sent her husband money in return for allowing his sons to come to Australia.
There was a discussion about why her husband let her leave if he wanted money from her. The applicant said he never wanted the children but he said she had to go back.
Before leaving Pakistan she lived in Lahore but he would come over and see the children and say “have you put the demands or when are you going to?”. It was noted she had claimed to have been living with her mother for 5 years of the six she was married. Asked why her husband let her do that, she said it wasn’t the whole five years but she did spend most of the time at her parents’ home. She opened a small [business] in her parents house because she needed to be independent.
Regarding the shootings the applicant said they were living in a different house in Lahore and didn’t divulge the address but [Mr B] found it. There was a big fight and they said “we won’t spare you”. They next day they came and opened fire. Asked why they did this the applicant said it was with the intention to kill, he was very angry at that time. After she came to Australia he went to her brother and pleaded that she come back. There followed a discussion about whether the applicant felt safe with his family members in Australia. The applicant said that she had talked to the psychologist about this who told her that the law is strict in Australia and that no one could harm her here. It was put to the applicant that her mother had applied for a waiver to extend her visitor visa before applying for protection. The applicant said her mother did this because she was waiting for her before applying. The applicant said she had a burn on her back caused by her husband.
The applicant submitted psychologist and GP reports from the [Mr N] and [Dr M] dated January 2018. [Mr N] states that the applicant suffers from anxiety and depression due to family violence back home. She was upset by the interview and was afraid she would have to return to Pakistan which would mean returning to her husband. She had been beaten and had to spend time in hospital. She is afraid she will be killed. She needs ongoing sessions. [Dr M] says that the applicant was physically and verbally abused by her husband almost every day, he threw hot tea on her and she has residual burn scars on over her back. Her father and brother were attacked and shot. She is on antidepressants and has prescribed sleeping pills.
On 6 February 2018 the representative submitted records of financial transfers made by [Brother A] to [Brother L] totalling over $1000 (AUD) in November 2014 and January 2015, stating that it was the applicant’s position that these were for the purpose of satisfying the demands of her husband’s family. [Brother L]’s address in the records is the house in [Address 4].
The applications on review
The applicants submitted an envelope and its translation. It is a Pakistani envelope and although, according to the translation, the addressee is put into the sender’s line it purports to be addressed to a court in Hafizabad regarding the custody of a minor, and the applicant is named as the sender from the address in [Address 4]. The date is [in] January 2018. There is a document which according to its translation is a summons issued by a stationer, which presumably is associated with the envelope. Neither the plaintiff nor the defendant are named. The case number and name of the case are not specified. It is addressed to the Honourable Court in Hafizabad. It is said to be “under the name of” the applicant. Someone (it is not clear who) is ordered to appear at 9 pm on [date] January 2018 and submit a defence to a complaint regarding the custody of a minor. The document purports to carry the seal and signature of the Hafizabad Family Court judge.
Another document, according to its translation, is a letter submitted to the Court by [Mr B]’s lawyer, in which he is referred to as the plaintiff and the applicant as the defendant and the subject is “Litigation: restitution of conjugal rights”. He claimed to have been an exemplary husband. In January 2015 after the birth of their second son she went to visit her parents but she did not return. So he went to get her but she asked for another 10 days. She didn’t return so he went to get her but she refused to come back and did not allow the children to meet him. The document is signed and sealed by a named “Advocate High Court”.
Another document, according to its translation is a request by [Mr B] to the Mediation Council asking for permission for a second marriage as the applicant went to her paternal home with the children in January 2015 and has not returned or made any contact in three years nor have her family members told him where they are. It states that it attaches the judge’s decision in his marital claim in his favour. But there is no such attachment.
There is a letter by the Imams Board of Victoria stating that the applicant asked for an Islamic dissolution of her marriage [in] May 2018. They had been living separately and he had not been supporting her in any way. The Board tried to contact him but he did not respond. The applicant sent the divorce form to [Mr B] for his signature but he did not return it (forms signed by the applicant but not by [Mr B] are also on the file, along with a copy of an envelope addressed to him in Hafizabad). They have therefore granted her a dissolution (copy submitted, dated [in] January 2019).
The applicant remarried [in] December 2022 – she submitted a copy of her marriage certificate.
The following were submitted:
An affidavit by [Mr O], who knows the applicants well as they are close neighbours with the applicant mother, and is aware of the problems with the applicant’s in laws. The applicant was spending most of her time with her parents since she married and there were often loud arguments when the in laws came over. The applicant’s husband and his brother in law [Mr F] are very bad people. They are often seen arguing with [Brother L] and his family and [Mr O] had seen the empty shells from the shooting at the house. [Brother L] told him about the family connections and why the police were unable to help. The applicant mother had been pushed against a wall by [Mr B] and took refuge in [Mr O]’s house. [Brother L] was beaten up several times. If the applicant returns to Pakistan she and her children will be killed.
Affidavit of [Mr P], who is a previous neighbour, to similar effect as the above, and also stating that residents of the street had been to the police station to file an FIR but it was not taken because of the [Mr B]’s family connection. After the applicant left Pakistan [Brother L] was beaten up very badly. The applicants’ lives are in serious danger.
Affidavit of [Ms Q], a very close friend of the applicant. She had heard a lot about the applicant’s troubles, and attempted suicide, and had seen the burns on her back. Her brother and mother had also been hit, [Brother L] was beaten up in the street. The neighbours, including herself, called the police but no one came to help. [Mr B] did not regard the younger child as his own and accused of her adultery. He snatched the older son away. She went to a lawyer with the applicant but the advice was it could take a long time go get her son back trough the courts, and that it was better she resolve the matter personally with the help of elders. The in laws brought the boy back because they couldn’t look after him. After her husband passed away the applicant mother demanded a divorce for the applicant and then the house was fired on but the police refused to file an FIR. After the applicants left [Brother L] was beaten up badly and his wife told her that he often stays with her family and rarely at his own home. If the applicants return to Pakistan they will definitely be killed.
The applicant made a statutory declaration dated 5 September 2023. She said she still feared harm from [Mr B] and his family. They will kill her and the children because she sought protection in Australia instead of returning to Pakistan and because she got a divorce and remarried. She also feared discrimination, prejudice and harm as a woman in Pakistan as she would be returning alone. She outlined the history of the marriage and said she was mistreated by [Mr B] and the family from the beginning. It was obvious they were only interested in money. She was not allowed her own phone or to communicate with her family. Verbal abuse soon became slapping, pushing and punching. She was completely humiliated and dehumanised. She was not allowed to sit with the family. She was expected to massage and serve her mother in law. They would complain about her housework and use that as a reason to beat her. They constantly beat her and asked her for money and property complaining that they needed money for their business. She felt that sex with her husband was like rape. On one occasion she was badly scalded when her mother in law was complaining about her and her husband threw a boiling hot cup of tea at her. She still has the scars. She would go back to her parents for a few months but then the panchayat would tell her to go home. This was the culture. The applicant claimed that this experience meant that being questioned by decision makers caused her to freeze in fear.
She learned that she could not go to the police for help. The in laws came to see her first baby and an argument broke out. Her mother in law tried to snatch the baby. The following evening 8-10 men came to the door and started beating up her brother. She called the police. They made a joke about her being raped, because she was a woman who had called them. The police did nothing which confirmed that her husband’s family was connected to them.
After her father died her mother decided she needed to divorce and the applicant agreed. It was after the birth of her second son. [Mr B] and his relatives came to the house. There was a huge argument about her wish to divorce. The shooting was the same night or the next day.
In the last couple of years the Panchayat had taken a step back and she stayed at home. [Mr B] continued to harass her about money. He wanted her inheritance. He refused a divorce saying he would kill her first. He only consented for her sons to travel with her to Australia on the understanding that the brothers would give him money. Also he was not accustomed to care for the children. He did not like them and accused her that the younger son was not his.
The applicant claimed that she did not come to Australia intending to seek protection. She only discussed it with her mother after she came to Australia. Insofar as her first statement says her mother came to Australia intending to apply for protection this was a miscommunication.
The applicant said she was on medication for depression and anxiety and sees a counsellor at [Organisation 1]. She is extremely cautious in her communications with her sisters in law. She has not had any contact with [Mr B] since soon after she arrived in Australia when she changed her SIM card. [Brother L] still regularly receives threatening calls from [Mr B] from different numbers. He avoids the Lahore house and mostly lives with his in laws.
In 2018 [Mr B] obtained permission to take a second wife (rather than divorcing the applicant which he will never accept). The applicant could not divorce in Pakistan unless [Brother L] acted for her which would have put him at risk. So she decided to seek a divorce from the Board of Imams Victoria. They tried to contact him and he did not respond nor did he sign the required document. But the divorce was granted in February 2019 and she is in the process of registering it with the authorities in Pakistan. [Mr B] considers them still married and told [Brother L] that when she goes to Pakistan he will kill her. She has since remarried. [Mr B] found out about her second marriage (her sisters in law attended the ceremony). He called [Brother L] again and said she was finished, because she had remarried while still married to him.
If she goes back to Pakistan he will kill her and the children, because she had not gotten him money and moreover had divorced and remarried. Her mother’s life is also at risk. The applicant would have to go back to Pakistan alone and her brother cannot help her. A woman without a husband is considered the same as a prostitute and she would be an easy target for sexual assault. The police would not help and would also target her. She won’t be able to get a job or a place to live. Her mental health would deteriorate further and she would be even more vulnerable to being attacked. If [Mr B] gets custody of the children she would not be able to stop him from harming them. Her sons will also be targeted as the children of a mother without a husband. They would be kidnapped. Boys and girls are frequently kidnapped in Lahore and they would be easy targets because they have grown up in Australia and they do not know Pakistan nor do they speak fluent Urdu. They will be identified as having lived in a Western country which will also make them a target. She could not safely relocate because they were able to find her before using NADRA and could do this again. The police would not protect her, because she is a woman trying to escape family violence and because of the connections with [Mr B]’s family.

The applicant submitted photos of her wedding and a photograph of her back. She submitted a further letter from [Dr M] dated August 2023 stating that the applicant had been hospitalised twice for panic attacks. She is taking antidepressants since 2020 and is also prescribed sleeping tablets.
The applicant mother also made a further statutory declaration, dated 6 September 2023. She said she had a lot of problems with her health and her memory is very poor. She said she did not understand a lot of what the Delegate had been asking her during her interview. She went on to describe the problems in her daughter’s marriage and how she was always standing up for her. She discussed the cultural practice of family intermarriage. [Mr B] was after the applicant’s share of her house. The applicant mother maintained that she did not at first intend to stay in Australia. She did not have much to do with the daughters in law from arrival. She doesn’t see them except on family occasions when everyone is together. When the applicant arrived she told her that [Mr B] always beats her and she wanted to get divorced and did not want to go back to Pakistan. The applicant mother was not safe to go back without her. [Brother L] gets the blame instead. He was beaten so badly his front teeth were broken and now he lives in hiding. The applicant has divorced and the applicant mother told her to do this. They will take revenge on her for this. [Mr B] has told [Brother L] he will kill them on return. The applicant mother said “I already moved houses once and my son in law found our address and started coming to the new place”.
The applicant mother also said that she was at risk because she is a widow, she cannot work, she would not know how to find a place to live, and she does not know how to get her medication or get to a doctor. She cannot manage on her own. A woman is not safe alone in Pakistan. A man could attack her and she would not be able to protect herself. The police would not take her seriously because she is a woman and a widow. The applicant mother attached a copy of her health summary sheet.
The representative’s written submission in support of the applicant and the included applicants states that the applicant is a vulnerable person because she has been exposed to prolonged physical and psychological abuse and trauma at the hands of her ex husband and his relatives and is taking medication to treat symptoms of anxiety and depression. Each of the sources of harm were relevant to the refugee and the complementary protection criteria. She was a member of the following particular social groups:
·Women in Pakistan
·Married women but with the appearance of being single/divorced women in Pakistan;
·Married women but with the appearance of being single/divorced women with minor children in Pakistan;
·Married women but with the appearance of being single/divorced women without male protection
·Women who have breached social and cultural norms by divorcing from their husbands and remarrying
It was submitted that the applicant was risk of at serious harm and explicit threats to her life and liberty amounting to serious harm, ongoing serious discrimination causing significant economic hardship threatening her capacity to subsist and denying her the capacity to earn a livelihood threatening her capacity to subsist, and significant harm i.e. arbitrary deprivation of her life, torture, and cruel or inhuman punishment and degrading treatment or punishment.

The authorities would withhold protection for a Convention reason and also the Pakistani State is unable to effective protection, nor protection that would eliminate the real risk of significant harm. The real chance/risk applied in all parts of Pakistan and also it was not reasonable for her to relocate.
With regard to the included applicants it was submitted that children in Pakistan, and children in Pakistan who are perceived to be foreign, are particular social groups, as were children of women falling within the particular social groups identified in the case of the applicant. They were at risk of the same forms of serious and significant harm as the applicant, were similarly unable to access effective state protection, could nor reasonably relocate and in any event the risk applied throughout Pakistan.
It was submitted that the evidence in relation to the core claims of family violence was consistent, and that minor inconsistences were not enough to believe the applicants.
The representative cited relevant country information with which the applicant’s claims are consistent, pertaining to the prevalence of family violence, violence against women in general, honour killings, and the cultural imperative to be married. The applicant as a divorced mother would be without family protection making her vulnerable to discrimination, harassment, violence and exploitation in the workplace, in the housing market and society generally. She would be particularly vulnerable to sexual harassment, assault and other gender based violence. The representative cited information about the extreme difficulty for women to divorce in Pakistan.
In support of the included applicants the representative cited country information about the kidnapping of children in Pakistan, including that there is a high threat of kidnapping of foreign nationals, and that the included applicants would appear as foreign.
The representative addressed the risk threshold and other pertinent considerations.
In support of the applicant mother in particular it was submitted that she fears that she will suffer serious harm in the form of serious physical harm, physical harassment and ill-treatment, torture and/or death at the hands of her former son in law [Mr B], his family, members of the Pakistani authorities, and members of the community. She is at risk of the above-mentioned treatment by reason of her membership of particular social group(s), namely:
·Women in Pakistan;
·Elderly widowed women in Pakistan;
·Elderly widowed women in Pakistan without male protection;
·Family members of persons who fall within the particular social groups identified in relation to the applicant:
It was also submitted that the applicant mother was at risk of significant harm as defined in the complementary protection provisions. Country information specifically about the attitude to widows in Pakistan was submitted, namely that they are at risk of poverty and discrimination, and dependency making them vulnerable to abuse.
The Hearing and post-hearing
The applicant said her family was living [Address 2] when she married. Her mother’s house in [Address 4] is currently empty. Her father died in 2011. Her brother [Brother L] now lives with his in laws (in Lahore) and friends. Her father had had [a] factory and also traded [commodity]. [Brother L] is a [Occupation 2].
Her brothers in Australia are all married. [Brother A] came when she was quite young (still living in Vehari). Then [Brother E] in 2009 or 2010. The sisters in law are from Vehari. They were sending her parents and brother money. She did not know how they sent it – it went to her father. After she married, she received financial support from her brothers via her father and her father also gave money directly to her husband. [Mr B] was the head of his household after his father died, she did not recall when this was. His mother is alive. He has [number] younger brothers. One married sister also lived in the home. [Mr B]’s occupation was [Occupation 3]. Asked to describe his socio economic status she said it was good, but he would say otherwise, always saying he needed more money.
Asked about her husband’s government connections, the applicant said his sister’s brothers in law were in the police. Asked for their rank and what station they were at, she said one was in Hafizabad, and the other she was not sure about. One was a senior officer and one more junior. The sister’s husband works in [specified government] department, and another member of the family works in [another government] department.
The Tribunal queried the contention that these relatives of her husband, by marriage, were particularly close to him or had a great level of influence within the government. The applicant said they told him they would support him in any way possible. Asked how she knew they had said that, she said he told her. He did many illegal things and they were discussed at home. Asked what he did that was illegal, the applicant said he hit someone on the road. The police wouldn’t take a report but compensation was paid. She overheard his brother in law say they would handle it.
At her marriage there were about 200-250 people and only about 40-50 were connected with her family. The Tribunal put to the applicant that the dispute over the number at her wedding did not appear to involve serious harm. The applicant said this was the start of problems because her family was stressed at having to provide for so many and they had been lied to. Her mother in law immediately began insulting them. Her family only had about 30-40 guests at her brothers’ weddings.
Asked why the family beat her, the applicant said they would do so on any pretext, finding fault with her generally, for example in relation to her cooking. Asked if she ever went to the police, she said she did not. It was not accepted to complain to the police about such things as they were not considered wrong in her culture. They beat her many times. Asked again why they treated her this way, the applicant said [Mr B] had no affection for her and just wanted money for his business or to pay off debts. He took all her dowry money (20K). When she visited her family after her marriage, by tradition her parents gave her another amount of money (15K) and he took that too. Within a short time, her parents told her, he had gone to her father and demanded another 50K. Her father gave it him. This pattern continued.
Asked if she herself had an income, the applicant said she ran a small [business] from her parents’ house which was about an hour and a half away.
Asked if she was ever seriously injured the applicant said they spilled hot tea on her and a doctor had to come to the house. She told her parents when she saw them, and they talked to the elders. She would spend a few months with her parents at a time but she was always sent back. They said they could not do anything about her situation and that it takes time to make her place in her husband’s family. He would promise to behave because they were giving him money.
The applicant said the fact that her son’s birthplace was registered as Hafizabad showed how much power [Mr B] had. The Tribunal observed that this could simply be a clerical error. The applicant said he did it deliberately and it was against the law. And he did not do it the second time around. The Tribunal observed that this also indicated the birth place was not a matter of importance to him.
The Tribunal asked how many times the applicant went home to her parents. She said she went back many times when she was hit and kicked out of her house and her brother would come and get her.
The applicant said she could not remember when her parents moved to [Address 4], or whether it was before or after her father died. After he died she began thinking about divorce. Asked at what point she separated from [Mr B] and stopped living in his house, she said she did not go back after the birth of her second son. That did not disturb him because he still controlled her, as they were still married.
The shooting at her house took place after her second son was born. His family wanted her to go back to his house. She said she wanted a divorce and then there was an argument. Her husband and his mother and uncle were fighting with her family. The shooting was either that day or the next day.
The Tribunal observed that the pictured damage to the walls of the house might not be bullet holes. The applicant said they were bullet holes. There was other evidence but it had not been preserved at the time. The pictures were taken after the event. She did not remember if anyone called the police. Her brother went to make an FIR. He told them he suspected [Mr B]’s family. They did not register an FIR or even that a shooting had occurred. They said they needed eye witnesses. The Tribunal put to the applicant that police would normally investigate evidence of a shooting themselves. She said they did not take any action at all. There was a second shooting after she came here and decided not to return. They beat up her brother and fired a gun in the air. Again he went to the police but no action was taken.
Her last contact with [Mr B] was in 2016. She arrived in March, one and a half months later she said she wanted a divorce and there was no contact after that, and he has no contact with the children. Asked why he has no contact with the children, the applicant said he was never interested in them.
The Tribunal asked why the applicant’s husband let her bring the children to Australia. She said he wanted money again, and her share of her family home. Her brother said come for a visit and take money back. The Tribunal said her brother could have transferred the money. The applicant said her brothers wanted to change her situation. She does not have a bank account. The Tribunal asked if her brother in Pakistan has a bank account. She said it was not his responsibility.
Asked why she came to Australia when she did, the applicant said she said she came for a visit and to get money. Then she decided to stay because she learned that domestic violence and marital rape were crimes.
The applicant said she has been divorced by the Islamic Court here but it has to be registered in Pakistan to be effective there. It sufficed for her to be able to re-marry in Australia. The Tribunal noted that it appeared [Mr B] has also divorced her. The applicant said he would not cooperate with her getting a divorce and only took a second wife to create an annoyance for her.
The applicant mother stated that her last address was in [Address 4] Lahore. She did not remember when she moved there, she did not remember the year her husband passed away. It was a heart attack. Asked if she attributed this to the applicant’s situation she said she did. Asked how it affected him she said he was affected by all the fights. She could not remember when the applicant married but they were living in [Address 4] and her husband was still alive. Asked when the applicant left [Mr B] the applicant mother said she was living with her mostly but separated when she came to Australia. Asked when the applicant last went back to [Mr B] she said she could not remember. Both the children were born in Lahore. Asked if the applicant went back to her husband after the children were born she said yes, after the first, and then they had fights and beatings. Asked if she went back after the second child was born she said no, but he would come to visit.
Asked when her sons came Australia the applicant mother said she did not remember. Asked whether it was before or after the applicant married, she said it was before. She confirmed two married [Mr B]’s aunt and cousin. Asked about her own relationship with that family, the applicant mother said that [Mr B] is the son of her maternal cousin. She said she did not have any contact with that family in Pakistan because of the issues that arose. She does see her sons though, and therefore her daughters in law, at family gatherings.
The applicant mother said she used to go to the applicant’s marital home when things escalated. It was awful, the applicant was very sick when she was pregnant but she could not get any information because she was not allowed to speak to her on the phone. Her husband would come too. Usually her son did not come with them but he would go separately and take her food. Asked how the applicant got to her their house she said her husband would drop her off or they would go and get her. Asked why the husband’s family beat the applicant she said it was about cooking and other household chores. Asked who beat her, the applicant mother said it was [Mr B]. Asked if there were any instances of serious harm she said the applicant was once burned with a hot cup of tea. Even when she was staying at their house he would assault her.

100.
They were sleeping when the house was shot at. There had already been a fight and then they all left. He threatened “I will show you”. Asked who was fighting, she said it was

[Mr B], his mother, and uncle and aunty. The applicant was staying with her and they all came over, she did not know why they came. There was an argument about their treatment of the applicant and it escalated.
101. Asked when this occurred she said she did not remember. It was a while before they came to Australia. Asked whether anything happened after that she said the applicant came to Australia and refused to go back. Asked if anything happened between the shooting and coming to Australia, she said the fights continued but the applicant did not go back to the house. He was coming and harassing her and demanding more money and her inheritance. Asked if there was any contact with the police, she said the in-laws are gangsters connected to the police. The police sided with them. Asked how she knew the police sided with them, she said he was very smug, so it was evident. He used to say that he could not be harmed.
102. Asked about the second shooting the applicant mother said when she got a divorce he shot in the air. Asked how he found out about the divorce she said one of her daughters in law told him.
103. Asked if the applicant ever harmed herself, the applicant mother said she once over-dosed on some pills when she was living with her in-laws. The neighbours told the applicant mother about it. Asked if the applicant had to go to hospital, she said she did not know.
104. Asked when she came to Australia, the applicant mother said she did not remember. She came to Australia before the applicant. Asked what would happen to her if she went back to Pakistan, she said [Mr B] would kill her because she had kept demanding a divorce for the applicant. After the applicant remarried they beat up her brother so badly that they broke his teeth.
105. Asked why she didn’t apply for protection straight away, the applicant mother said she only came here to care for her daughters in law. The Tribunal noted that the applicant mother also applied for a waiver to extend her stay, on the basis of such family reasons. As she did not apply for a protection visa sooner, this may raise a doubt as to the genuineness of her claimed fear of harm. The applicant mother said the issues escalated and they had to make a protection application. There were threatening calls and visits and he said if they ever returned he would shoot them at the airport.
106. The Tribunal asked the applicant mother why she kept sending the applicant back to her husband. She said unfortunately that is their culture, someone had to take care of her daughter in the future.
107. Asked if anything else concerned her, the applicant mother said she has a heart condition due to being consumed by stress and trauma. As an old widow in Pakistan she would have no protection. She said [Brother L] is a [Occupation 2] who lives with his in-laws.
108. The Tribunal took further evidence from the applicant. The Tribunal observed that the photo of her back may not be of burn scars. The applicant said she could get it checked by a doctor. She said the only treatment was the application of some ointment. Asked what happened when she swallowed tablets she said her husband called a doctor but the doctor just said she would vomit it all out.

109. The Tribunal asked the applicant about her claim to have separated in 2009. She agreed that this was not the case. She married in 2008 and her children were born in [year] and [year]. After that she never went back but he was still coming to her house.
110. The Tribunal asked why [Mr B] had written the threat letter, given that there were other means of communication. She said she did not know. After she came here she changed all her contact details. Asked if he has any contact with the children she said he does not. Asked why this is so she said he was never interested in them. Asked why he would want to harm her now, she said she had broken two promises. She was supposed to go back to Pakistan with money for him (equivalent to 20 lakhs). And also she had divorced him and remarried.
111. Asked how she was going to get that amount of money back to Pakistan she said she would talk to her brothers first and discussed the procedure. The Tribunal asked whether she agreed that it was not necessary to be here physically to get the money. She said she had not seen them for a long time and they thought it would be good for her.
112. There followed a discussion about her marriage to her current husband. The Tribunal put to the applicants that there was a non-disclosure certificate covering information received in relation to the fact that she had remarried which was not in dispute, and also that there were apparently some problems in the marriage. She said it was true that they have had issues but they wanted to stay together.
113. The Tribunal asked how [Mr F]’s visit to Australia was ominous, considering he could have just been visiting family. She said he was demonstrating [Mr B]’s reach.
114. The Tribunal noted the passage of time since these claims arose, and that it was to be considered whether there was a real chance of being harmed. The applicant said that he did not divorce her, she divorced him. He needed her permission to remarry. She came here and divorced him without his permission and married someone else which had injured his honour. He was still threatening her brother on this basis. If she went back to Pakistan she would go back single, and there was no hope for a woman of her status back in Pakistan. Where would she take the children and how would she support them? She said her brothers could not afford to take care of her. She could not sell the house in Pakistan without everyone’s agreement. A woman does not normally inherit after being married off with her dowry.
115. The second shooting, and the assault on her brother was when she said she was not going back. She did not come to Australia intending to seek protection. She had accepted how her life was.
116. In a post hearing submission the representative submitted that the applicants had given credible and consistent evidence and referred to the Credibility Guidelines. They noted the applicant mother’s frailty, lack of education and cultural background. They commented on the matters covered by the non-disclosure certificate. They emphasised that [Mr B] had not given the applicant a divorce, nor had he divorced her, but had obtained permission to enter into a second marriage, which was not the easier option for him. It was submitted that it could not be reasonably concluded that [Mr B] would be indifferent to the applicant having divorced him, merely due to the passage of time. The risk of family violence increases after divorce driven by the loss of control. The representative also submitted that [Mr B] had stalked the applicant by repeatedly coming to the house uninvited and without notice, affecting her mental health. She would be particularly vulnerable to the negative impacts of further threats, stalking, harassment and physical violence such that they would amount to serious harm.
117. The representative attached a letter from [Dr R] dated 8 December 2023 stating that he had examined her that day and observed that “she has old burn scars on her right side of neck and upper back and there was a large patch of burn scar above left buttock area”.
Country information
118. DFAT Country Information Report Pakistan dated 25 January 2022 includes the following information:
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.
…
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.
…
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.
…
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.

FINDINGS AND REASONS
119. Based on the information in their applications, the Tribunal finds that the country of nationality in these cases is Pakistan.
120. The applicants did not claim to fear harm due to their race, religion, nationality or political opinion.
121. S 5L 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. The 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 (protected characteristics), or must distinguish the group from society (social perception).
122. No evidence was put forward supporting the contention that married women with the appearance of being single/divorced women in Pakistan, married women with the appearance of being single/divorced women with minor children in Pakistan, married women with the appearance of being single/divorced women without male protection, or women who have breached social and cultural norms by divorcing from their husbands and remarrying, are perceived as sharing those characteristics. The Tribunal does not accept that these are particular social groups in Pakistan. It does not accept further that family members (including children) of such women constitute particular social groups.
123. No evidence was put forward supporting the contention that elderly women, widowed women or elderly widowed women without male protection constitute particular social groups in Pakistan. The Tribunal is not satisfied that they constitute particular social groups.
124. For the purpose of this decision the Tribunal accepts that women and children in Pakistan constitute particular social groups based on protected characteristics. It does not accept that children in Pakistan who are perceived to be foreign constitute a particular social group.
125. Notwithstanding the DFAT report which cites alarming rates of domestic violence in Pakistan, the Tribunal does not accept that women or children, ipso facto, face a real chance of serious harm in Pakistan. It depends on their family circumstances. The Tribunal does not accept that single, divorced, or remarried women face a real chance of serious harm due to that status, notwithstanding the strong cultural prejudice in favour of marriage and against divorce.
126. It is implicit in the applicant’s claims that if she is at risk for the gender-based reasons claimed, the applicant mother and the included applicants, who normally reside with her, would also be at risk. There have also, according to the claims, received direct harm and threats against them, according to those claims. It is therefore necessary to assess whether those claims are true. On one hand, they are at core consistent with a classic scenario of family violence involving financial control, social isolation and physical abuse. And in general terms this is consistent with the country information and what is known about the operation and development of family violence. The applicant said she was beaten many times and burned on the back. The applicant mother also said she was beaten and abused many times. However, the Tribunal has many concerns about the credibility of the applicant and the applicant mother.
127. The applicant mother’s evidence was largely consistent with that of the applicant, but it was not strong in favour of their claims. She appeared to be a reluctant witness exaggerating her level of forgetfulness especially about important dates. Her claim that she has little to do with her daughters in law was untenable, considering she lives with one of them. The Tribunal gives her evidence little weight.
128. The nature of the feud between the applicant and her ex husband and his family was obscure. The applicant referred repeatedly to having to “give demands for money” and being questioned as to whether she had “given the demands”. The Tribunal found this language stilted and rehearsed. In the protection application the feud is related to demands for money and almost as an after thought she says that every now and then he hit her and kicked her out of the house. In her first statement of her claims she also says a great deal about arguments over money, e.g. in relation to the cost of a wedding, or her access to money for herself.
129. The applicant claimed that she left her ex husband in 2009 and lived with her parents after that, reinforcing this by stating that her address from 2009 was in [Address 4] where her parents lived. But then she withdrew from that claim. She said he threw her out of the house often and then she would go back. But it was never clear how many times this happened.
130. She claimed that her first child having his birth registered in Hafizabad was an instance of her husband’s abuse and power, but the Tribunal finds this interpretation of an insignificant clerical matter (the exact city of birth) far-fetched. There was a claim about an attempted abduction of the first included applicant after he was born, but the evidence was inconsistent about whether he was in fact taken away and then he was returned, or whether it was just an attempt. The Tribunal does not accept that this event occurred.
131. It was stressed that the ex husband has powerful connections among his in-laws who are able to keep him out of trouble. Two police officer, and some public servants, do not amount to a group of powerful connections at all. The fact that one of the relations is a fake psychic is unsavoury but irrelevant. An account was given of a motor accident in which he found his connections helpful, but it is not at all clear what trouble he faced as a result of this incident or what precisely was done to help him. It was stated that he sent some of these people to visit Australia, as a way of demonstrating his power. However the in-laws are related to the applicant’s brothers’ wives who live here and the fact that they visited is completely ordinary.
132. It was claimed that the applicant’s parents moved to a different address in Lahore and her ex husband found out about it, and that was when the first shooting occurred. But there is no other address listed than the one in [Address 4] from the early years of her marriage and he must have have known of it considering the first child was born there. It was claimed that [Brother L] is afraid to live in the family home in Lahore. The Tribunal is not satisfied that he lives anywhere else. It is his address as indicated on the submitted money transfers.
133. Her husband had to give written permission for the children to come to Australia with their mother, in order for them to obtain visitor visas (form 1229). Again the repeated reason why he did this, despite being so hostile to her and the children, was to get money. This was artificial: the brothers (or at least [Brother A]) had been sending money electronically to the applicant’s family on her own evidence. There was no need for her to go to Australia to get it and there was no reason for her husband to think that. It was contended on behalf of the applicant that these transfers were evidence of her husband’s “demands”. They are probative of this at all.
134. It was contended that [Mr B]’s visits to her after 2014 were infused with the same harassment, threats and violence that she claims occurred when she was living under his roof, of the nature of stalking. On the contrary, the most logical explanation was that he was visiting his children. The Tribunal is not satisfied that he used these visits to abuse or assault her or anyone in her family.
135. A most disturbing aspect of the evidence put forward is the letter sent by her husband. The Tribunal found its content highly contrived to support a protection application and echo her own claims and language by pointing to his connections, the prevalence of wife-killing in Pakistan and that they would be killed at the airport (i.e. no chance to call for help), that she had changed her SIM card, and that the children were part of her, and that her brothers would be dealt with too and therefore could not protect her. Why it was put into the post was very strange, considering that he could get her contact details via his relatives who are married to her brothers in Australia. It was not in his interests to put such incriminating threats into a letter. The Tribunal finds that this has been done to show the threat came from Pakistan.
136. The dates of two shooting incidents, and [Brother L] having been beaten, were very difficult to pin down. The photos of what are said to be bullet holes are in appearance simply holes in walls. The Tribunal is not satisfied that there was any shooting, or beating of [Brother L], or that there were ever any attempts to engage the police, and therefore does not accept that FIRs were refused and the family insulted.
137. The applicant has some discolouration of skin on her back. It is not at all clear on what basis a GP has determined that these are scars, let alone burn scars. The applicant and the applicant mother have GPs and psychologists who believe their claims. The Tribunal gives this little weight as they are second-hand accounts and based on self-reports. The psychologist states that the applicant was hospitalised but there is no other evidence that she was hospitalised either in Pakistan or in Australia. Friends and neighbours in Pakistan have sworn affidavits, the Tribunal considers they are contrived to support the applicant’s migration effort and gives them little weight. [Brother A]’s evidence is also given little weight as he is not a disinterested party and has embellished his evidence by claiming sinister reasons for the visits of his wife’s family members to Australia which were simply unsubstantiated.
138. The Tribunal accepts that the applicant found sexual relations with her ex husband unpleasant but it is not satisfied that she did not consent.
139. The Tribunal is not satisfied that the applicant’s ex husband opposes her Australian divorce and re-marriage. The documents submitted concerning his own family law proceedings (custody, restitution of conjugal rights) are weak. In the case of the custody suit the “summons”, despite being signed and stamped by the Court, is defective in many ways as described above. The restitution suit also is a just request signed by an advocate (possibly a court official), but no judgement has been submitted confirming the case. He may have taken a second wife, but nothing follows from this. The applicant says he did not sign and return her divorce request. Given the Tribunal’s concerns about her credibility, the Tribunal is not satisfied that this is the case although the Board of Imams accepted it. The Tribunal is not satisfied that the ex husband has any interest in obtaining custody of the children.
140. The Tribunal is not satisfied that the applicant will be seen as an adulterer or a prostitute. She has re-married within the rules of the Victorian Imams.
141. The Tribunal accepts that the applicant suffers from anxiety and depression but it is not satisfied that this presents a risk that she will be seriously harmed by others in Pakistan. The same applies to the applicant mother’s mental and physical health concerns. The applicant mother is not without male protection as she has a son in Pakistan who can take care of her as before, and the cited country information does not establish that there is a real risk of widowed women being seriously harmed.
142. Having considered the information provided by the representative, and the DFAT report, the Tribunal is not satisfied that the risk that the included applicants will be kidnapped or otherwise seriously harmed is any more than speculative, notwithstanding that they have spent considerable years in Australia and therefore will appear somewhat foreign/westernised and may be thought to be monied.
143. The Tribunal is not satisfied that the applicant or the applicant mother have ever been harmed as claimed, or that they, or the children, have been threatened with harm. It is not satisfied that the applicant’s ex husband or his family members intend to harm them in future. It is not satisfied that they face a real chance of serious harm from other quarters.
144. It follows from the foregoing that the Tribunal does not accept that any of the applicants faces a real chance of serious harm for any of the reasons specified in s 5J(1). Therefore, none of the applicants has a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that none of the applicants is a refugee as defined in s.5H(1).
145. Similarly, based on its findings of fact, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that any of the applicants will suffer significant harm as defined in the Act on return to Pakistan.
CONCLUSION
146. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa).

There is no suggestion that any applicant satisfies s 36(2) on the basis of being a member of the same family unit as any other person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

148. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
149. The Tribunal affirms the decisions not to grant the applicants protection visas.
Genevieve Hamilton
Member

[2024] AATA 2652

20 February 2024

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Immigration

Statutory Interpretation

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Procedural Fairness

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