1805786 (Refugee)

1805786 (Refugee) [2023] AATA 3619 (16 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Lipman (MARN: 0106572)
CASE NUMBER:  1805786
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Alison Murphy
DATE:16 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 16 August 2023 at 3:36pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – gender – particular social group – women in Pakistan – gender-based violence – history of family violence – Hazara ethnicity – Shia religion – female religious scholar – organiser of prayers and religious ceremonies – serious harm from Sunni extremists – relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 14 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 30 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person owed protection by Australia.
The applicant was scheduled to appear before the Tribunal on 14 August 2023 to give evidence and present arguments. The Tribunal was also asked to hear oral evidence from the applicant’s daughter [Ms A] and son [Mr B] to supplement their written statements. Having considered the material submitted by the applicant by way of pre-hearing submissions, including statements from each of the applicant’s five children and medical evidence from the applicant’s psychologist, the Tribunal considered it should make a favourable decision to the applicant on the materials available to it without the need for a hearing.
The applicant was 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 (DFAT) 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 applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.
Country of nationality
There is no dispute that the applicant is a citizen of Pakistan. The applicant travelled to Australia on apparently a genuine Pakistani passport; a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Pakistan and she has been assessed on that basis by the Department. The Tribunal finds she is a Pakistani citizen and has assessed her claims against Pakistan as the country of nationality and the receiving country.
The applicant’s claims for protection
In essence, the applicant claims that if returned to Pakistan she will face persecution and significant harm for the separate and combined reasons of her gender, her Shia religion, her Hazara ethnicity and her profile as a victim of domestic violence and a woman with no male protector. In particular the applicant claims to be a victim of longstanding and serious family violence perpetrated by her husband in Pakistan. She also claims to have been the target of threats from Lashkar-e-Jhangvi and other Sunni extremist groups in Quetta for reasons of her religious activities in her Shia community and her Hazara ethnicity.
The applicant’s personal background
The applicant is a [age]-year-old woman from Quetta, Pakistan. It is not in dispute that she is of Hazara ethnicity and Shia religion and she has participated in the Departmental interview and Tribunal hearing with the assistance of a Hazaragi interpreter. For the 30 years preceding her protection visa application, she lived in a property within [Quetta], Pakistan and her residence is confirmed in her National Identity Card. Consistently with the applicant’s living arrangements, DFAT reports that most Hazaras in Pakistan live in enclaves in Quetta due to the security situation in Balochistan.[1]
[1] DFAT Country Information Report: Pakistan 25 January 2022 at 3.4
The applicant is one of [number] siblings, [number] of whom are deceased. Her parents are also deceased and her sole surviving sibling resides in Australia. She married her husband in 1980 and they have five adult children, all of whom have lived outside Pakistan for a number of years. Two of her sons moved to [Country 1] in 2015 and are now permanent residents of that country, one of whom was granted asylum in 2018. Another son, [Mr B], moved to Australia in 2010, was granted protection in 2012 and is now an Australian citizen. The applicant’s younger daughter, [Ms C], moved to Australia in 2013 after her marriage and is now an Australian citizen. Her older daughter, [Ms A], moved to [Country 2] in 2007 after her marriage and is now a [Country 2] citizen. The applicant’s family composition is confirmed by the NADRA issued Family Registration Certificate provided to the Department.
The applicant completed high school and was married at age [age]. She states that she wished to become a teacher, but her husband would not allow her to work. Her husband was a prominent Hazara [Occupation 1] and her son [Mr B] is also an [Occupation 1]. Her younger son, [Mr D], graduated from [specified] school in Pakistan before receiving a [named] scholarship to study in [Country 1]. Her third son, [Mr E], was a [Occupation 2] whose work was shown on national TV channels. The Tribunal accepts the applicant’s family were prominent within the Hazara community in Quetta.
The applicant’s husband retired from work in 2008 and her adult children gradually departed Pakistan from 2010 onwards. Following her husband’s retirement the applicant travelled overseas on a number of occasions including to Iran, Iraq and Saudi Arabia for pilgrimage; to Afghanistan for her son [Mr B]’s wedding in 2013; to [Country 2] to visit her daughter [Ms B] in 2015 and to [Country 1] to visit her sons in 2015 and 2016.
The delegate’s decision records that the applicant arrived in Australia in September 2016 as the holder of a tourist visa, lodging the protection visa application on 30 January 2017.
The Tribunal accepts the above matters to be true.
Family violence
The applicant claims to have been subjected to longstanding and serious family violence from her husband in Pakistan. She claims that from the beginning of her marriage, her husband would not permit her to work. Following his retirement in 2008, his behaviour became more controlling and he discouraged her from attending social gatherings such as weddings and births and required her to seek his permission to visit friends or relatives or go shopping. He was frequently violent towards her and his behaviour caused her to increase the time she spent at the imam bargah, [named] on [location], Quetta. She increased her religious activities, organising women’s gatherings and prayers. She also tried to avoid spending time at home with her husband by visiting her adult children outside of Pakistan. She claims that in April 2016 her husband badly beat her with an iron rod, injuring her right shoulder.
The delegate did not accept the applicant’s claims to have experienced family violence to be true. Rather the delegate considered that the applicant’s failure to claim protection when she travelled to [Country 2] and [Country 1] to visit her children in 2015 and 2016 indicated that she did not have genuine and serious concerns for her safety at those times. As well the delegate considered that her overseas travel to those countries as well as to Iran, Iraq, Saudi Arabia, Syria and Afghanistan with family members between 2009 and 2015 indicated that her husband was not controlling of the applicant. Rather the delegate formed the view that the applicant was merely seeking to remain in Australia with two of her children whom she loved the most.
The Tribunal has the benefit of a significant amount of information that was not available to the delegate. In particular each of the applicant’s five children have given evidence about the applicant’s husband’s changed behaviour after his retirement and their discovery of his violence towards their mother. Her daughter, [Ms C], states that after her mother’s arrival in Australia in September 2016, she realised her mother was suffering from pain in her right shoulder which affected the way in which she held her newborn baby. She took her mother to a doctor and her mother disclosed that her father had beaten her with an iron rod. Her daughter [Ms B] states that her mother never spoke directly to her about her father’s violence towards her on the phone, but would from time to time make reference to his anger and bad moods. She states that it wasn’t until her mother arrived in Australia and started to see a psychologist that she opened up about her husband’s violence towards her, which the applicant accepted as natural.
The applicant’s son [Mr B] states that his mother was traumatised on arrival to Australia as a result of his father’s behaviour and he learned through his sister [Ms C] that she had been beaten with an iron rod. [Mr D] states that he only became aware of his father’s violence towards his mother after hearing from his sister that their mother arrived in Australia injured and requiring medical treatment. [Mr E], whom the applicant visited in [Country 1] in 2016, said he became aware during that visit that his mother was experiencing severe pain in her shoulder that she could not hide, but she did not disclose how she was injured and they could not afford to take her to hospital to get her checked. All five siblings say that they have ceased all contact with their father since discovering his treatment of their mother.
Medical evidence before the Tribunal also supports the applicant’s claims to have experienced family violence. In a report dated 26 July 2023, [Dr F], clinical psychologist, reports that she has been treating the applicant since 2018 and that her presentation is consistent with diagnoses of major depressive disorder and post-traumatic stress disorder. She reports that when she first saw the applicant she was withdrawn, hopeless and helpless and wished to die, experiencing symptoms such as shortness of breath, heart palpitation, excessive sweating, nausea and restlessness as well as flashbacks and nightmares concerning traumatic incidents involving her husband. In [Dr F]’s opinion, the applicant’s significant psychological trauma arises from her experiences of domestic violence and threats to her life and safety in Pakistan. She struggles to deal with her day-to-day needs due to her poor mental and physical state and requires constant care from her children, particularly her daughter in Australia. Other patient medical records indicate the applicant also suffers from a range of physical health conditions as well as the recorded mental health conditions.
While the collateral information in the medical reports is based on statements of the applicant, it is detailed, consistent with the applicant’s claims and has informed the applicant’s diagnoses and ongoing medical treatment over the past five years. In those circumstances the Tribunal gives it significant weight.
Further, the applicant’s claims about her experiences in Pakistan are consistent with independent country information about the situation for women in that country. DFAT reports that Pakistan has one of the worst records for gender equality in the world, ranking 153 out of 156 countries. While the Constitution prohibits discrimination on the basis of sex, many discriminatory laws exist including on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. Women’s participation in society in Pakistan is heavily curtailed by their social circumstances, which restrict many women’s personal, social and economic activities outside the home. Rates of gender-based violence are high and it often goes unreported due to stigma and a lack of privacy for victims. Domestic violence is commonly seen as a private family issue with police reluctant to intervene.[2]
[2] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89 – 3.100
In view of the above information, the Tribunal accepts that the applicant has experienced family violence in Pakistan perpetrated by her husband since at least 2008. The Tribunal further accepts that if the applicant returns to her home in Quetta, Pakistan, there is a real chance the applicant’s husband will again be violent towards her.
In making that assessment the Tribunal notes DFAT’s advice that women and girls in Pakistan face a high level of official discrimination and a high risk of societal discrimination and violence, particularly domestic violence, because of their sex.[3] The DFAT advice is consistent with other reliable sources of country information. Human Rights Watch reports that women and girls in Pakistan continue to be subject to gender-based violence including honour killings and acid attacks, and traditional justice systems at times arrive at verdicts to carry out honour killings and mutilation. While the Anti-Honour Killing Act 2016 declared murders in the name of family honour a criminal offence, it has failed to prevent such crimes.[4]
[3] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100
[4] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p. 520; ‘44 women killed in the name of ‘honour’ in Swat’, Pakistan Today, 19 October 2019; ‘Ending violence against women in Pakistan’, Asia and the Pacific Policy Society, 7 February 2018; ‘Honor’ Killings Continue in Pakistan Despite New Law’, Human Rights Watch, 25 September 2017; ‘Couple shot dead in suspected ‘honour killing’ in Lahore’, Geo TV, 5 June 2018; ‘Honour’ killings in Karachi shock Pakistan’s largest city’, The Guardian, 27 December 2017; ‘Two men killed for honour in Islamabad’, Express Tribune, 7 March 2017
The controlling and violent behaviour that the applicant has experienced from her husband is properly characterised as family violence, a complex pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. Family violence often takes place between intimate partners, but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. While family violence can affect a person irrespective of gender, it is widely acknowledged that the overwhelming majority of these behaviours are perpetrated by men against women, and that the most significant risk factor for experiencing family violence is being a woman.[5]
[5] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
Country information indicates that Pakistan is a patriarchal society in which gender disparity is widespread and extends to political and state institutions.[6] The vulnerability of women to violence by men is heightened by their exclusion from social, economic and political institutions in Pakistan as a structural cause of inequity:
A significant source of women’s vulnerability to violence is their financial dependence on their fathers, brothers or husbands. Tradition assigns women all household chores and discourages them from working outside the home. Work environments and public spaces that are hostile to women obstruct them from both the formal and informal economy. The few women who do participate in the workforce largely constitute the informal economy, where wages are abysmally low and economic vulnerability to external shocks like the pandemic is higher. Men’s monopoly over household income and assets, combined with a belief that women should tolerate violence to keep the family together, leaves women not only more vulnerable to violence but also incapable of escape.[7]
[6] Gender discrimination worsened poverty in Pakistan’, ANI News, 11 December 2021; ‘Country Policy and Information Note - Pakistan: Women fearing gender-based violence’, UK Home Office, 16 February 2020, p. 7,Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)
[7] US Institute of Peace Pakistan: A Rising Women’s Movement Confronts a New Backlash 17 March 2021 Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)

The Tribunal accepts the violence perpetrated upon the applicant by her husband is gender-based and is directed at her because she is a woman and that such gender-based harm is pervasive in Pakistan.
For these reasons the Tribunal is satisfied that the harm the applicant fears from her husband involves systematic and discriminatory conduct directed at her for the essential and significant reason of her gender and her membership of the particular social group ‘women in Pakistan’. The Tribunal considers that the group of ‘women in Pakistan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
Hazara ethnicity and Shia religion
As noted above, it is not in dispute that the applicant is of Hazara ethnicity and Shia religion. The applicant claims to have been active in the activities of the women’s section of the imam bargah on [location], Quetta, being the [named imam bargah]. In particular she claims to have organised women’s gatherings and prayers and to have participated in religious ceremonies and festivals, with the result that she was prominent in women’s circles at the imam bargah. She describes receiving a phone call at her home threatening her life unless she ceased her religious activities as well as a threatening pamphlet left at her door. She claims that she reported these threats to the police, who accepted her First Incident Report (FIR) but advised her that they lacked the resources to investigate or identify the offender and that she should be careful and vigilant. She states that as a result she limited her activities, avoiding gatherings and refusing invitations to important religious gatherings that she had attended over the years.
The delegate did not accept the applicant’s claims about her religious activities to be true, considering that a ‘famous religious scholar’ would have received more threats from extremists over a longer period of time than those described by the applicant. The delegate was also concerned that the widely documented difficulties experienced by Hazara Shias in Quetta were evident long before the applicant travelled to Australia yet the applicant didn’t seek protection in [Country 2] or [Country 1] in 2015 or 2016 before she travelled to Australia.
The Tribunal considers that a fair reading of the applicant’s claims and activities suggests only that she was a prominent volunteer and participant in the women’s activities at the imam bargah on [location], Quetta. The Tribunal has had regard to the three letters of support from members of the Hazara Shia community in Quetta. [Mr G], member of the Balochistan Provincial Assembly states that the applicant is a female religious scholar who conducted majalis in birth and death processions and received threats from Lashkar-e-Jhangvi. Country information confirms that [Mr G] is a Hazara politician from Quetta who was elected member of Pakistan’s Provincial Assembly for the constituency of Quetta from 2013 and is a candidate in Pakistan’s upcoming national elections.[8]
[8] [Source redacted]
[Mr H], [office bearer] of the Balochistan Shia Conference in Quetta, states in a letter dated [in] February 2018 that he knows the applicant personally; that she is a religious scholar, zakira (debater) and rhyme singer at the imam bargah [named] and that she was a target of Lashkar-e-Jhangvi and Sipah-e-Sahaba because of her Shia religion and her active participation and presence in the programmes of the imam barghah and the Balochistan Shia conference. Again, country information confirms that [Mr H] was the [office bearer] of the Balochistan Shia Conference in Quetta.[9]
[9] [Source redacted]
The third letter of support also recounts the applicant’s role in the [named imam bargah] and the threats she received, but the Tribunal is unable to identify the author or date of that letter. Each of the applicant’s five adult children also talk about their mother’s religious activities and active participation in the activities of the imam bargah.
Having considered all of the information before it, the Tribunal is satisfied the applicant was an active participant in the imam bargah on [location], Quetta and that as a result she was well known within the Hazara Shia community in Quetta as a female religious scholar and organiser of prayers and religious ceremonies within the women’s section of the imam bargah.
While the delegate may be correct in her assessment that the applicant did not seek asylum in [Country 1] or [Country 2] despite having the opportunity to do so because she preferred to remain in Australia with those of her children who live here, such a conclusion has little relevance to the test the Tribunal must apply. Rather the issue that the Tribunal must determine is whether the applicant faces a real chance of serious harm on return to Pakistan for one or more of the reasons set out in s 5J(1)(a).
Country information cited in the delegate’s decision supports the applicant’s claims about the situation for Hazaras in Quetta at that time due to targeted violence from religious extremists. It reports that most Hazaras in Quetta live in ghettoised communities and do not step outside of their areas or loiter around the city because their distinct facial features make them easily recognisable targets of ‘an unrelenting wave of targeted violence aimed at them since 1999’. As noted in the delegate’s decision, the Hazaras were reported to be among the most educated communities in Balochistan because their elders invested heavily in education and many were trusted with key positions and responsibilities in health, education and other government sectors. Notwithstanding this it is reported that sectarian violence forced approximately 70,000 Hazaras to leave Quetta after sectarian elements of the Pakistan People’s Party government warned of dire consequences if they did not leave Quetta voluntarily, noting that a Human Rights Watch report from that time stated ‘There is no travel route, no shopping trip, no school or no work commute that is safe for the Hazaras’.[10]
[10] THE EXODUS OF QUETTA’S HAZARAS - Newspaper - DAWN.COM cited at page 5 and 7 of the delegate’s decision dated 14 February 2018
The DFAT report current at the time of the delegate’s decision confirmed that Hazaras tended to live in isolated communities to reduce the opportunity for attacks by sectarian militants, assessing that Hazaras face a moderate risk of sectarian violence in Pakistan because of their religious beliefs and that they face a higher risk than other Shia due to their distinct appearance. DFAT stated that despite a reduction in the number of violent attacks against Hazaras at that time (the risk of violence being partly mitigated by the high levels of security maintained by the Hazara communities themselves), Hazaras remain segregated and are key targets for sectarian militants.[11]
[11] DFAT Country Information Report: Pakistan 1 September 2017 as cited at page 7 of the delegate’s decision
A 2014 Human Rights Watch report documented Sunni militant group attacks on the mostly Shia Hazara community in Balochistan, finding that the ongoing attacks have meant that the half-million members of the Hazara community in Quetta live in fear, compelled to restrict their movements, leading to economic hardship and curtailed access to education and employment.[12] UNHCR Guidelines from May 2012 reported that law enforcement authorities were reportedly unable or unwilling to protect members of religious minorities, including Shias, and that Sunni militant groups, including the banned Lashkar-e Jhangvi, operated with impunity.[13]
[12] ‘We are the Walking Dead’: Killings of Shia Hazaras in Balochistan, Pakistan,
[13] United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International protections needs of members of religious minorities from Pakistan, 14 May 2012 (UNHCR Guidelines)
In view of the country information and statements in support cited above, the Tribunal accepts that the applicant received threats from local extremist groups in Quetta because of her role in the imam bargah and that she reported those threats to the police in March 2016 as indicated on the translated FIR provided to the Department and the Tribunal. The Tribunal accepts that if she returns to Pakistan, the applicant will again be active in the imam bargah and there is a real chance she will again attract the adverse attention of local Sunni extremist groups operating in Quetta and be subjected to threats and violence constituting serious harm.
In making that assessment the Tribunal notes that DFAT’s current report states that militant groups, including Lashkar-e-Jhangvi and Islamic State, consider the Hazaras to be ‘infidels’ who are ‘worthy of killing’. DFAT cites country information indicating that at least 2,000 Hazaras were killed by militants in Pakistan between 1999 and 2019 ‘in various incidents including bomb blast, suicide attacks and target killings’ and that Hazara political and religious leaders were targeted for assassination. Recent examples cited included a bombing in Hazarganji market in April 2019 which killed 24 people and an incident in January 2021 in which IS militants killed 11 Hazara miners in Mach. DFAT currently assesses that Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity.[14]
[14] DFAT Country Information Report: Pakistan 25 January 2022 at 3.5, 3.12
Similarly the South Asia Terrorism Portal (SATP) has reported an increase in the number of sectarian attacks and killings by armed groups since 2020, reversing the overall decline in terrorist attacks reported in previous years.[15] The Pak Institute for Peace Studies (PIPS) published an article in June 2020 observing that ‘sectarian-related target killings of members of the Shi’a Hazara community is a regular feature of Baluchistan’s security landscape’.[16]
[15] ‘Khyber Pakhtunkhwa: Assessment 2022’, South Asia Terrorism Portal (SATP), 31 January 2022; ‘Militant Landscape of Balochistan’, Muhammad Amir Rana, Pak Institute for Peace Studies, 19 June 2020
[16] Muhammad Amir Rana Militant Landscape of Balochistan, Pak Institute for Peace Studies,19 June 2020
For these reasons the Tribunal is satisfied that the applicant faces a real chance of serious harm from Sunni extremists if she returns to Quetta, and that harm involves systematic and discriminatory conduct directed at her for the essential and significant reasons of her Shia religion and Hazara ethnicity.
Does the real chance of persecution extend to all areas of Pakistan?
Having accepted that the applicant faces a real chance of serious harm in Quetta, Pakistan for reasons of her membership of the particular social group of ‘women in Pakistan’, her Shia religious beliefs and her Hazara ethnicity, the Tribunal has considered whether the real chance of serious harm relates to all areas of Pakistan.
In view of the applicant’s relatively advanced age, gender, Hazara ethnicity and Shia religion, the Tribunal is satisfied that she faces a real chance of serious harm throughout Pakistan. While DFAT reports that Hazaras living outside of Balochistan face a lower risk of violence than those inside of Balochistan (moderate as compared to high), the Tribunal considers the applicant’s age, gender and personal history make it practically impossible for her to leave her husband and move to another area of Pakistan without risk of serious harm. Serious harm relevantly includes significant economic harm that threatens a person’s capacity to subsist as well as the denial of access to basic services, where the denial threatens a person’s capacity to subsist.[17]
[17] Section 5J(5)(e) and s 5J(5)(f)
DFAT reports that internal relocation within Pakistan depends on having both the financial means and family, tribal or ethnic networks to establish themselves in a new location and that single women find it especially difficult to relocate. DFAT assesses that without support it is extremely difficult for a woman to relocate to escape an abusive relationship and that women who leave their families face physical risk, stigma and steep economic barriers, with reports of widespread sexual harassment of women and girls in public places.[18] It reports that women in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence.
[18] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89 – 3.100
In this case the applicant is aged [age] and has no means of financial support other than her husband. She has limited education, she has never worked outside the home and she suffers from a range of physical and mental health conditions. Her parents are deceased, her adult children all live outside of Pakistan as does her only surviving sibling and she has no family members outside of Quetta. The Tribunal accepts that any attempted relocation within Pakistan would expose her to significant economic as well as other kinds of harm for the essential and significant reason of her gender, noting the country information cited above that indicates women’s exclusion from Pakistan’s social, economic and political institutions is both a structural cause of inequity and a significant source of their vulnerability to violence from men.[19] For these reasons the Tribunal accepts that the real chance of persecution relates to all areas of Pakistan.
[19] US Institute of Peace Pakistan: A Rising Women’s Movement Confronts a New Backlash 17 March 2021 Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)
Effective state protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Country information indicates that state protection is not effective for women in Pakistan. Rather DFAT assesses that the inadequacy of state protection from gender-based violence for women and girls in Pakistan itself constitutes a high level of official discrimination.[20] Other sources indicate that laws designed to protect women from violence are rarely enforced and in some cases those seeking protection have had their movements restricted, been pressured to return to their abusers or exploited into prostitution or trafficking.[21] In these circumstances the Tribunal finds that effective state protection is not available to the applicant.
[20] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100
[21] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, pp 36-37; see also ‘Over 5,000 women approach Darul Aman in KP during last 5 years’, Tribal News Network, 23 January 2021
For these reasons the Tribunal is satisfied that the applicant faces a real chance of persecution if she returns to Pakistan, now or in the reasonably foreseeable future. Therefore she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
Alison Murphy
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.
…

[2023] AATA 3619

16 August 2023

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