1815440 (Refugee)

1815440 (Refugee) [2023] AATA 4566 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Fayyaz Ali Shah (MARN: 1570276)
CASE NUMBER:  1815440
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Alison Murphy
DATE:6 November 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.

Statement made on 06 November 2023 at 4:35pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – capacity to give evidence and meaningfully participate in the hearing – non-disclosure certificate – particular social group – elderly widows in Pakistan – Shia religion – Hazara ethnicity – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 424A, 438
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 9 May 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 25 May 2016. The delegate refused to grant the visa on the basis of his assessment that she is not owed protection by Australia.
The applicant appeared before the Tribunal on 17 October 2023 to give evidence and present arguments. Also attending as witnesses and support persons were the applicant’s family members, [Mr A], [Mr B] and [Ms C]. At the commencement of that hearing it became apparent that the applicant and interpreter were unable to understand each other. It was explained to the Tribunal by the witnesses and the interpreter that the interpreter was an Afghani Dari speaker, while the applicant was speaking Pakistani Hazaragi. The hearing was adjourned to investigate whether an appropriate interpreter could be located for the hearing. The hearing resumed later the same morning with a Hazaragi interpreter.
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 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.
Capacity of the applicant to give evidence
The Tribunal had some concerns about the applicant’s capacity to give evidence and meaningfully participate in the hearing, given her age and medical issues. A psychologist’s report dated 15 August 2023 records that she is diagnosed with anxiety, depression and PTSD and that she has not received any treatment for these conditions in Australia or Pakistan. The assessing psychologist noted that she did not speak to the applicant directly, but with her niece [Ms C] and nephew [Mr A]. The applicant is described in that report as visibly aged and distressed, presenting more as a 90-year-old woman than her biological [age]. It is noted that she had a ‘withdrawn and disassociated disposition, hunched over, rocking, not blinking’.
At hearing, the applicant presented as fragile but cooperative, endeavouring to understand and respond to the Tribunal’s questions. However she was visibly frail, struggling to stay upright in her chair and she became distressed at times during the hearing. Even after the change of interpreter, there were difficulties with communication and these increased as the hearing progressed until the interpreter announced he could no longer understand her responses.
Non-disclosure certificate
The Tribunal has before it the applicant’s departmental file relating to the refusal of the visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 438 of the Act by issuing a certificate dated 9 May 2018. A copy of that certificate was provided to the applicant, together with an invitation to comment on its validity. No submissions as to the validity of the certificate were received. The Tribunal accepts that certificate to be valid.
Where a valid certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. In this case, the material the subject of the certificate was relevant and adverse to the applicant’s claims. For these reasons, the Tribunal wrote to the applicant pursuant to s 424A of the Act, setting out a brief summary of that information and inviting her comments. The certificated information has not otherwise been disclosed to the applicant.
Country of nationality
There is no dispute that the applicant is a citizen of Pakistan. The applicant travelled to Australia on an apparently genuine Pakistani passport; a copy of which is contained on the departmental file along with copies of her Pakistani national identity card and birth certificate. 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 personal background
At hearing, the applicant gave evidence that she did not know her date of birth, but believed she was [age] years old. Her passport and birth certificate record her date of birth as [date].
She states she was born in Parachinar, Kurram Agency, and her identity documents confirm this to be the case. The applicant gives her occupation as housewife in the protection visa application. The visa applicant states that she does not read or write in any language and she signed that visa application with a fingerprint. She entered Australia [in] February 2016 as the holder of a visitor visa and applied for the protection visa on 25 May 2016.
The Tribunal accepts each of the above matters to be true.
There is a dispute about some aspects of the applicant’s personal history. In the visitor visa application, she stated she wanted to visit Australia to see her niece, [Ms C]. In the protection visa application, she states she was married to [Mr D] (deceased) and had two sisters, [Ms E] and [Ms F], and a brother [Mr G]. She states that she and her deceased husband had one child, a daughter, [Ms H], who is now a permanent resident of Australia.
However material on the departmental file indicates that the applicant and her husband had other children who are now resident in Australia. In light of this material, the Tribunal wrote to the applicant in the following terms, pursuant to s 424A of the Act:
You have stated that your late husband was [Mr D], that you have a daughter [Ms H] who is a permanent resident of Australia and that [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] are your nephews and nieces. Information on the departmental file indicates that you may be the mother rather than the aunt of [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C]:
·the birth certificate presented by [Ms C] states that her parents are [Mr D] and [applicant’s name variant 1];
·[Mr I] stated in his visa application that his parents were [Mr D] born [year] and [applicant’s name variant 2] born [year];
·[Mr B] stated in his visa application that his mother’s name was [applicant’s name variant 3].
Information on the departmental file also indicates that your children stated that their mother [applicant’s name variant 2] was deceased in their own visa applications and that they declared themselves to be Afghan nationals when they may be Pakistani nationals. The department believes that your family are Turi Pashtuns from Pakistan, rather than Hazaras from Afghanistan.
In her response dated 4 September 2023, and at hearing, the applicant and the witnesses maintained that [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] are the applicant’s nieces and nephews and not her children. The applicant claims that they are the children of her elder sister, [applicant’s name variant 1], who died in Afghanistan in approximately 2002. She claims that while she and her sister have similar names, those names have different meanings. She states that her sister [applicant’s name variant 1] was also married to a man called [Mr D], although her sister’s husband was an Afghan citizen while the applicant’s husband was a Pakistani citizen.
The Tribunal was also provided with statutory declarations from [Mr K] and [Mr L], neither of whom attended the hearing to give evidence. [Mr K]’s declaration states that he has known the applicant and her family for many years; he is aware that she is a Pakistani citizen of Hazara ethnicity and that she and her husband [Mr D] have a daughter [Ms H] and no other children. [Mr L]’s declaration states that he knows [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] and their parents [applicant’s name variant 1] and [Mr D] and that they are Afghan nationals, the parents now deceased. He states that he has met the family in Afghanistan as well as in Australia and the family is known to his parents and other family members.
I have considered the explanations of the applicant and the witnesses as well as the statutory declaration submitted to the Tribunal. It may well be that the applicant’s family members have spent time in Afghanistan and that the authors of those statutory declarations have made them in good faith believing the contents to be true. However I do not accept that the applicant has a sister called [applicant’s name variant 1] or any variant of that name or that [applicant’s name variant 1] is the mother of [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C].
Rather the applicant named her sisters as [Ms E] in the visa application, not [the applicant’s name variant 1] or any variant of that name. She did not suggest that she had a sister by the name of [the applicant’s name variant 1] until after the Tribunal put to her the adverse information in the s 424A letter. The information on the departmental file, as particularised in the Tribunal’s letter, indicates that [applicant’s name variant 1] (mother of [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] was also born in [year], the same year as the applicant. At hearing, the applicant gave evidence that both she and her sister [the applicant’s name variant 1] married men called [Mr D] and had daughters named [Ms H].
As discussed with the applicant and the witnesses at hearing, their version of events requires the Tribunal to accept that the applicant’s parents gave birth to two daughters in [year], to whom they gave nearly identical names [applicant’s name variants] and [applicant’s name] who each went on to marry a man by the name of [Mr D] and have a daughter named [Ms H]. I do not accept that to be true and I am satisfied that [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] are the children of the applicant and her late husband and not her nephews and nieces.
The Tribunal accepts that the applicant’s husband, [Mr D], died in or about 1999 and that all of the applicant’s children have since migrated to Australia. The Tribunal accepts that her elderly father remains living in Parachinar with her brother [Mr G] while her surviving sister [Ms F] lives in the same city with her own family.
In relation to her employment, the applicant states that she was self-employed [in] [Location 1], Parachinar in Kurram Agency. Online material suggests that [Location 1] is a [market] in Parachinar, Kurram Agency.[1] This is consistent with her statements in the visitor visa application and the Tribunal accepts it to be true.
[1] [Source redacted]
The Tribunal further accepts that the applicant is of Hazara ethnicity and Shia religion. As noted above, she participated in the hearing in the Hazaragi language. DFAT reports that it had been advised by a member of the Turi-Bangash Supreme Council in Parachinar that there were about 1,200 to 1,500 Hazaras living in Parachinar, where they were integrated into the broader Shia community. Similarly, two representatives of Anjuman Hussainia, a peak organisation representing the Shia community in Parachinar, estimated that there were about 100–150 Hazara families living in Parachinar.[2] This is consistent with information on the departmental file indicating that the applicant’s daughter, [Ms H], married a man of [named] ethnicity who was born in Parachinar.
[2] ‘Hazaras in Parachinar’, Department of Foreign Affairs and Trade (DFAT), 15 December 2010, CX255081
The applicant’s claims for protection
In brief summary, the applicant claims that if returned to Pakistan, she will face serious and significant harm from members of her deceased husband’s family, with whom she has had a long‑running dispute about property. She claims that her husband was killed by his uncle and nephew in 1999, following which they stripped her of the properties her husband had inherited from his father in a dispute concerning her husband’s inheritance from his father.
She claims she will face serious and significant for reasons of her gender, her Shia religion, her Hazara ethnicity and her profile as an elderly woman without family support in Pakistan.
Assessment of claims
I accept the applicant’s evidence that her late husband inherited properties from his father, including their residential house in Parachinar and other properties which were rented to produce income. I further accept that following her husband’s death in 1999, there was a dispute within the family about the ownership of the properties and that they were seized by her husband’s relatives. In making that assessment I note DFAT’s advice that women face significant legal discrimination on issues such as inheritance, property rights and family laws, and that poor, marginalised, minority and rural women are particularly vulnerable and lack access to support services.[3]
[3] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100
I do not accept the applicant’s husband was murdered by his relatives [Mr M] and [Mr N] in the course of this dispute. In making that assessment I note the death certificate produced to the Department states he died of natural causes in 1999. While there is an assertion in the written material that [Mr D] died in hospital after being beaten up in broad daylight by some brothers of [Mr M], neither the applicant nor her family members were able to provide details to the Tribunal. When asked about her husband’s death at hearing, the applicant said only that he was killed by his enemies.
I do not accept that the applicant’s husband’s relatives pursued or sought to harm the applicant during the 17 years she remained living in Pakistan after the death of her husband. The applicant gave evidence that following her husband’s death she remained living in Parachinar with her brother until 2006, when she moved with her daughter [Ms H] to Peshawar. The claims made to the Department and Tribunal about the applicant’s circumstances following the death of her husband do not detail any incidents of harm to the applicant other than the loss of property rights, nor do they provide any details of the events that she claims forced her to leave Parachinar for Peshawar in 2006; then Peshawar for Quetta a few years later; then Quetta for Islamabad where she remained until her departure for Australia in 2016.
At hearing, the applicant said that she left Parachinar for Peshawar in 2006 with her daughter [Ms H] who was married at the time. When asked why they had left Peshawar, she said only that her enemies wouldn’t let them live there. In Quetta she lived with her daughter and her daughter’s family and they moved to Islamabad because it was a safer city than Quetta. Her daughter [Ms H] came to Australia on a partner visa two weeks after the applicant arrived in Australia on the visitor visa.
[Mr B], [Mr A] and [Ms C] asserted that the applicant’s late husband’s relatives would seek to harm the applicant if she returned to Parachinar, but they were not able to give any detail about the dispute or why it continued 24 years after [Mr D]’s death and 18 years after the applicant left Parachinar. The one person other than the applicant who might be expected to have direct knowledge of the events in Pakistan is her daughter [Ms H] with whom she lived between 2006 and 2016. However [Ms H] did not attend the Tribunal hearing nor provide any written evidence to the Tribunal. On the evidence before it, the Tribunal is not satisfied that the applicant’s husband’s relatives will seek to harm the applicant if she returns to Pakistan, now or in the reasonably foreseeable future.

The Tribunal finds that if returned to Pakistan, the applicant will return to Parachinar where her father and siblings live. In making this assessment the Tribunal notes that she lived in Peshawar, Quetta and Islamabad in the years before she travelled to Australia, but this was possible only because she was living with her daughter [Ms H] and [Ms H]’s family and they were financially supported by [Ms H]’s husband. [Ms H], her husband and their family are now permanently resident in Australia.
Medical records provided to the Tribunal in respect of the applicant’s father [indicates] that he is in his late [age range] and suffers a range of medical issues and resides with [Mr G] in Parachinar. The applicant gave evidence that her father is actually older than that and the Tribunal accepts that may well be the case. The Tribunal accepts that the applicant’s siblings [Mr G] and [Ms F] are themselves elderly with families of their own and that they are unable or unwilling to take responsibility for the applicant’s ongoing support.
Risk of harm on return
For the reasons set out above, the Tribunal accepts that the applicant will return to Parachinar an elderly widow of Shia religion and Hazara ethnicity. While she operated a [stall] in the market in Parachinar for a time following her husband’s death, she has not lived or worked in that area for approximately 17 years and the Tribunal accepts she has no independent means of subsisting in that city. The Tribunal accepts she was financially dependent on her husband, and following his death, her children.
DFAT reports that Pakistan has one of the worst records for gender equality in the world. 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. It notes that women’s participation in society is heavily curtailed by their social circumstances, which restrict their 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. Overall DFAT assesses 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.[4]
[4] DFAT Country Information Report: Pakistan 25 January 2022 at 3. 89–3.100
There are many reported barriers to women living alone in Pakistan, including restrictions on renting property, cultural pressures and security issues. While there are no national laws preventing women from living alone, at times district administrations are reported to have issued an effective ban on real estate agents and landlords renting houses and flats to women living alone.[5] Even in large and relatively safe cities such as Islamabad, many landlords and agents refuse to rent property to women living alone.[6]
[5] Human Rights Commission Pakistan 2011, State of Human Rights in 2010, April, p.209
[6] '‘They Assumed I Ran A Brothel’: How Women Wanting To Live Alone Are Treated In Pakistan', Khadija Muzaffar, Friday Times (Pakistan), 18 June 2022, 20230420105113
Older women face particular economic, health and security challenges:
The most important and foremost need of an old person is income; unfortunately, very few old people in Pakistan have access to a good source of income or pension. The existing pension system in Pakistan covers only about 15 percent of the population of older people in the country, leaving most of the elderly without financial stability. Older women are very vulnerable in this situation as they are usually financially dependent on their husbands and most older men do not have a source of income or pension. Because of this, it is extremely difficult for older women to meet their basic needs.
…
The second most crucial factor is having access to high-quality healthcare services. Older women frequently depend on their family members to accompany them to a medical facility. The visits are frequently delayed and postponed because of other commitments. Due to this, older women frequently have health issues that remain unaddressed. Sometimes when a visit to a medical facility is skipped, a minor health condition becomes more complicated. Moreover, because older people rely on other family members for financial support, the family support system does not pay for older women’s medical bills or other healthcare expenses. Instead, funds are allocated to younger family members due to poverty and other issues. Additionally, older women are increasingly living alone – some have been abandoned – as younger relatives move to other cities or abroad. This increases loneliness, depression and anxiety in older women.[7]
[7] 'Challenges for older women', Waqas Ashfaq Qureshi, The News (Pakistan), 02 October 2022, 20230420100619
DFAT also reports that Shia in Pakistan face a moderate risk of sectarian violence and societal violence, although it notes the situation has improved considerably in recent years. Shias have been targeted by sectarian extremist groups who have attacked Shia individuals, places of worship, shrines and religious schools although the frequency of such attacks has declined since 2013.[8]
[8] DFAT DFAT Country Information Report: Pakistan 25 January 2022 at 3.60–3.61
Pakistan’s Hazara community has come under repeated attack by militant groups in Pakistan for reasons of their Shia religion. DFAT 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. The South Asia Terrorism Portal (SATP) has also 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.[9]
[9] ‘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
For the above reasons, the Tribunal is satisfied that the applicant faces a real chance of serious harm if she returns to Parachinar, and that harm involves systematic and discriminatory conduct directed at her for the essential and significant reasons of her membership of the particular social group of ‘elderly widows in Pakistan’ and 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 Parachinar, Pakistan, for reasons of her membership of the particular social group of ‘elderly widows 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 considering whether the real chance of persecution extends to ‘all areas of the receiving country’, the Australian courts have held that ‘the phrase … must take its meaning from its context within a law which gives effect to Australia's protection obligations under the Convention’:
It is implicit from the subject-matter of the provision that areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country. In context, the areas of a receiving country where there is freedom from persecution are areas where safe human habitation exists[10] (emphasis added).
[10] FCS17 v MHA (2020) 276 FCR 644 per White and Colvin JJ at [81].
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 and that women who leave their families face physical risk, stigma and steep economic barriers.[11] It reports that women in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender‑based violence and that those groups facing official discrimination will face discrimination in all parts of the country.[12]
[11] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89–3.100
[12] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100; 5.24
In this case, the applicant is aged [age] and is without any independent means of financial support in Pakistan. She is illiterate and suffers from a range of physical and mental health conditions. She is widowed and all of her children live outside Pakistan. She has no remaining relatives in Pakistan, except for her elderly siblings and very old father in Parachinar.
In the applicant’s particular circumstances, 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 that the applicant’s age, gender and personal history make it practically impossible for her to move alone to another area of Pakistan without risk of serious harm. Serious harm relevantly includes significant economic harm or the denial of access to basic services, where it threatens a person’s capacity to subsist.[13]
[13] Section 5J(5)(e) and s 5J(5)(f)
The Tribunal accepts that any attempted relocation within Pakistan would expose the applicant to significant economic and other kinds of harm for the essential and significant reason of her gender. For these reasons, the Tribunal accepts that the real chance of persecution relates to all areas of Pakistan.
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.[14] 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.[15] In these circumstances, the Tribunal finds that effective state protection is not available to the applicant.
[14] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100
[15] ‘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).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 4566

6 November 2023

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