1919204 (Refugee)

[2024] AATA 4266

1919204 (Refugee) [2024] AATA 4266 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Iqbal Chaudhry (MARN: 1174774)

CASE NUMBER:  1919204 & 1919198

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Rebecca Mikhail

DATE:10 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 10 October 2024 at 3:23pm

CATCHWORDS
REFUGE – protection visa – Pakistan – separate applications by husband, and wife and three children during claimed separation – husband approached for recruitment by extremist group – increasing threats to applicant and to family after applicant’s departure – shot at and beaten during return visit – delays in departing and applying for protection visa – applied after student visa refused – inconsistent and implausible claims and evidence and authenticity of documentation – wife’s claim on grounds of inter-ethnic/caste marriage – harassment by both families – vague and inconsistent evidence about claimed separation – no diagnosis of mental health condition – third child now Australian citizen and withdrawn from application – younger Australian-born child not part of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424AA
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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants, who claim to be citizens of Pakistan, are a family consisting of a father and mother and two of their children (dependant applicants).

2. The father first arrived in Australia [in] November 2012 on a student visa. The mother and the dependant applicants arrived in Australia [in] May 2013 as dependants on the father’s student visa. The parents had a third children born in Australia on [Date].

3. On 6 November 2017 the father applied for a permanent protection visa on his own as at the time he claims he was separated from the mother. On 28 June 2019 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).

4. On 11 November 2017 the mother applied for permanent protection visas for herself and her three children in a combined application. On 28 June 2019 a delegate of the Minister for Home Affairs refused the grant of the visas under s 65 of the Migration Act 1958 (Cth) (the Act).

5. This concerns two applications for review of those decisions. The applicants have consented for a joint decision in respect of their applications.

6. The issue in this case is whether the applicants meet the refugee criterion and, if not, whether they are entitled to complementary protection or are member of the same family unit of someone who meets either. The relevant law and mandatory considerations are set out in the attachments.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   APPLICANTS’ CLAIMS FOR PROTECTION AND EVIDENCE

   Before the Department

   Father’s application for protection

8. The father’s claims, as outlined in his application for protection, can be summarised as follows:

   ·He was born in [Year] in Karachi and lived in [Neighbourhood 1].

   ·He is a Sunni Muslim.

   ·He has a sister and [brothers], and his brothers reside in [Country]. His parents continue to reside with his sister in [Neighbourhood 1].

   ·He completed a bachelor’s degree in 2002 at [University]. He was then unemployed but supported by his parents.

   ·Whilst at university he was approached by the Muttahida Qaumi Movement (MQM) asking him to join them in their activities. The activities were against the state of Pakistan, and they were forcing people to give them extortion money and were using their workers to torture and kill those people who were against their ideology.

   ·The MQM assisted him in getting admission to university even when he did not have the merits to be admitted. They wanted him to repay them by joining their organisation in an activist manner. He was forced to participate in forbidden activities.

   ·He used to get threats from MQM activists and sometimes mental and physical torture for not listening to them.

   ·He left university but their demands as well as their threats and torture never stopped.

   ·Before leaving Pakistan, they were threatening him, but he avoided paying attention to their demands.

   ·He decided to leave Pakistan and completed an application for a student visa which was granted. He left Pakistan with his wife and two children. He came to Australia on a student visa in November 2012.

   ·The MQM kept contacting his family in Australia whilst he was away, but he thought that in 2016 they must have forgotten him so he visited Pakistan with the belief that they will not bother him. Whilst in Pakistan in 2016 he was hiding from the MQM but in the last few days of his trip he received messages from them saying they knew where he was, and he realised that his life was still under threat. He then left for Australia and thought he was safe.

   ·He went to Pakistan again in 2017. He did not want to go but his mother was seriously unwell, and he had to be there for her because his [brothers] were in [Country]. Although his life was in danger, he went for a few days just to see his mother. The MQM came to know he was in Pakistan from the beginning of his visit. They threatened him and asked him to pay them money to help their organisation keep going. During this visit he was driving when he realised that someone was following him and then his car was shot at. He was stopped by unknown people. He got out of the car and was beaten and tortured by them. He returned to Australia [in] October 2017 and lodged an application for protection.

   ·His life will be at risk if he returns to Pakistan. The state authorities cannot protect him as they do not have the resources and do not take these complaints seriously.

   ·He is now separated from his wife and has three children who are living with his wife.

9. In support of his claims and application, the father provided to the Department of Home Affairs (the Department) the following evidence in support of his claims:

   ·A First Information (Police) Report (FIR) in Urdu dated [October] 2017 and an accompanying unaccredited translation from Pakistan in relation to the attack on him.

   ·A medical report from [Hospital 1] in Karachi dated [October] 2017.

   ·Two photographs of a car and two photographs of the father with bandages.

10. On 15 February 2019 the father attended an interview with a delegate of the Minister for Home Affairs in relation to his application for protection where he provided further evidence in relation to his claims for protection.

11. The delegate refused the grant of the father’s visa on the basis that she did not accept his claims to be credible as he had no significant involvement with MQM and could provide no evidence of contact with them. He was unable to explain why MQM would have sought him for so many years over his refusal to join, and how he was able to remain safely in Pakistan for that time. She also considered it highly unlikely that the father would have remained in his home country for eight years after first receiving threats if he had been in genuine fear for his life and noted that the father never received any threats directly. She also found his account of the alleged attack was implausible, and the extended delay in seeking protection after his arrival to Australia, in conjunction with his delayed departure from his home country and his three visits back to Pakistan, strongly indicated a lack of subjective fear of harm on his part.

    Mother’s application for protection

12. The mother initially provided a brief handwritten statement with her application for protection claiming that she had separated from her husband and now feels threatened if she returned to Pakistan. She indicated she would provide details later.

13. The mother subsequently provided a written statement which can be summarised as follows:

    ·She came to Australia five years ago with her two children in order to join her husband who was on a student visa.

    ·Her husband had threats against his life in Pakistan before they came to Australia. This, coupled with visa and financial problems in Australia, caused her relationship with her husband to deteriorate.

    ·After the birth of their third child the mother wanted to work and did so despite her husband’s wish that she remain at home.

    ·Due to contact with men she had through her work, her husband became suspicious and would say that women in Pakistan would be in trouble if they did not listen to their husbands. This caused her to think that harm would befall her and her children. She is certain that her husband would not harm her or their children, but members of his family could, as this often happens to women in Pakistan that are perceived as being disobedient or accused of having an extramarital affair.

    ·Her husband’s life is also under constant threat and that threat could extend to her and her children.

    ·She also married her husband against the wishes of her father and relatives and had always been taunted and harassed for this reason. Her relatives believe she ‘infamed’ and stigmatised them by getting married out of the family and that she should be killed out of revenge.

    ·She believes she will be tortured, harassed, and even killed on return to Pakistan. There is no security for women considered adulterous and she falls within a vulnerable group of women not safe in Pakistan.

14. On 15 February 2019 the mother attended an interview with a delegate of the Minister for Home Affairs in relation to her application for protection where she provided further evidence in relation to her claims for protection.

15. At that interview she claimed that, after having separated from her husband and moving out in June 2017, she and her children had recently moved back into her husband’s home. She had returned three months prior so that she could assist her husband after a medical procedure and to help alleviate living costs.

16. The mother did not provide any other supporting evidence to the Department in support of her claims for protection.

17. The delegate refused the grant of the visas on the basis that, due to concerns with the mother’s evidence, she did not accept that the mother and her husband were separated at any point, nor that due to their separation the mother’s reputation was tainted in Pakistan, which in turn led to her family wishing to harm her for damaging their family honour. The delegate also did not accept that the mother will be a single female without family support if she and her children return to Pakistan and did not accept that she will be at risk of harm for this reason, or due to the reasons relating to her husband’s protection claims.

    Review application

    Father’s application for review

18. On 16 July 2019 the father lodged an application for review of the Department’s decision with the Administrative Appeals Tribunal (the Tribunal). With his application for review the father provided the Tribunal with a copy of the delegate’s decision record with his application. He was represented in relation to this review by a migration agent.

19. On 27 August 2024 the Tribunal received written submissions which addressed the findings of the delegate which can be summarised as follows:

    ·Contrary to the Department's findings, the threats from the MQM, although initially not severe enough to prompt an immediate protection claim, escalated over time. The father did not apply for protection whilst on a student visa in 2012 because the threats at that time were mainly verbal and non-imminent. It was not until later, during his visits to Pakistan in 2016 and 2017, that these threats became more direct and violent.

    ·The father’s return to Pakistan in 2016 was due to his mother's severe illness.  During this visit, MQM members contacted him, and although no physical harm occurred during this trip, the threats persisted, causing him considerable fear.

    ·The police report was obtained under challenging circumstances, and although it may not conform to typical formats, it should be considered in the context of the difficulties in obtaining official documentation in Pakistan, especially when the threats come from a powerful political group like the MQM.

    ·The medical report, while basic, was issued by a small local hospital and accurately reflects the father’s injuries.

    ·The photographs of the father’s injuries and the damage to his vehicle were taken after the police conducted a forensic examination of the car. Any discrepancies in the size and appearance of the bullet hole should be attributed to this examination process. The photographs, while perhaps not capturing every detail perfectly, are genuine and were taken shortly after the incident.

    ·His wife filed a separate protection visa application due to personal threats unrelated to her husband's case. Their separation was temporary and driven by financial difficulties and the need to ensure the welfare of their children. The reconciliation and current cohabitation should not detract from the genuineness of either of their protection claims.

    ·In relation to the delay in seeking protection, the father initially believed that the threats were manageable and that returning to Pakistan was safe. It was only after the physical attack in 2017 that he realised the severity of the danger he faced. His subsequent application for protection reflects this change in circumstances.

20. On 22 July 2024 the father was invited to attend a hearing before the Tribunal on 16 August 2024 to give evidence and present arguments relating to the issues arising in his case.

21. On 15 August 2024 the father’s representative requested the hearing be postponed and provided a medical certificate dated 14 August 2024 which noted that the father would be unfit to continue his usual occupation on 15 and 16 August 2024. The Tribunal advised his representative that, as per the Tribunal’s MRD Practice Direction, a medical certificate stating an applicant is unfit to work will not generally be sufficient and in the circumstances the Tribunal had decided to proceed with the hearing. On 16 August 2024 the father presented as unwell when he attended the Tribunal’s premises and as a consequence the Tribunal agreed to reschedule the hearing to 29 August 2024.

22. On 29 August 2024 the father appeared before the Tribunal. The Tribunal hearing was conducted in English, but the father had the assistance of an interpreter in the Urdu and English languages when needed. During the hearing the father provided oral evidence in relation to his background and claims for protection.

23. At the hearing the father provided to the Tribunal an additional photograph purportedly of a bullet hole in his car in Pakistan.

24. At the conclusion of the hearing the father was given until 12 September 2024 to provide further submissions including country information in support of his claims and an accredited translation of the FIR.

25. On 11 September 2024 the Tribunal received further submissions in relation to this application that addressed concerns raised at the hearing and also an accredited translation of the FIR.

    Mother’s application for review

26. On 16 July 2019 the mother lodged an application for review of the Department’s decision with the Administrative Appeals Tribunal (the Tribunal). With her application for review the mother provided the Tribunal with a copy of the delegate’s decision record with her application. She was represented in relation to this review by the same migration agent that was representing her husband in his application for review.

27. The mother’s application for review included herself and her three children. Her youngest child born in Australia was subsequently withdrawn from the application for review on 12 August 2024 as he acquired Australian citizenship.

28. On 24 July 2024 the mother was invited to attend a hearing on 20 August 2024. She provided correspondence indicating she would attend the hearing. On the morning of the 20 August 2024 the Tribunal received correspondence from the mother’s representative who advised she was unwell and could not attend the hearing and provided a medical certificate dated 19 August 2024 which stated that she will be unfit for her normal duties from 19 to 20 August 2024. The Tribunal agreed to postpone the hearing and the hearing was rescheduled on 12 September 2024.

29. On 10 September 2024 the mother’s representative emailed the Tribunal requesting a further postponement of the hearing for two weeks as he was in Pakistan due to a personal emergency. He noted that if postponing the hearing was not an option, he requested to attend the hearing remotely via video. He noted, however, given potential network issues and the time difference in Pakistan it would be more appropriate for him to attend in person in two weeks.

30. On 11 September 2024 the Tribunal responded to the above request and advised the representative that it had has considered the reasons for the request and has considered that this hearing had already been previously postponed and rescheduled. It also noted his request to be able to appear at the hearing remotely. It also noted his concern about the time difference from his overseas location, but noted it appeared the hearing would occur at 8.30am from his location. In regard to his concern about technical connection issues that may arise, the Tribunal noted it will attempt to address these issues if and when it arises during the hearing. It noted that, in the circumstances the Tribunal had agreed for him to appear at the hearing remotely and, as such, the hearing would proceed as scheduled. It provided the representative with information as to how he could connect to the hearing via video link.

31. Attached to the above email received from the mother’s representative on 10 September 2024 was a submission addressing the Department’s decision which can be summarised as follows:

    ·Due to the ongoing marital disputes between the mother and her husband, she separated from her husband and moved to a different property with her children in or around 2016. The separation occurred due to various disagreements.

    ·Due to the financial hardship and personal circumstances as well as the mother not having a previous tenancy history in her sole name, the mother secured the accommodation in the form of granny flat on a cash basis. The accommodation was secured through a friend and the landlord was the friend of the mother’s friend. The mother’s friend would collect the rent in cash and forward it to the owner. The owner of the property clearly mentioned at the time of securing the property that he would not sign a lease or give any rental reference for any purpose as he did not want to declare his rental income.

    ·During their separation, mother and her husband would only generally communicate with each other regarding the children’s education and extra-curricular activities and needs. There was limited communication due to the tension in their relationship. It was during this time that the husband applied for his protection visa. The husband did not add her as the applicant in his application due to their separation. Due to the hostility received from the mother’s own family as well as the husband’s family in Pakistan, the mother has genuine safety concerns for herself and her children. In light of the separation and the husband not adding the mother in the application, the mother would have to return back to Pakistan if not for her protection visa application. This would have caused her and her children safety risks as it is common in Pakistani society to reject the love marriages, and honour killings are still very prevalent in Pakistan, especially in the Hazara community.

    ·The mother submits that she is from the Hazara community, which is an ethnic group known for not supporting out-of-caste marriage and for being of extreme religious and cultural opinions. She submits that during her marriage in 2008, none of the male family members of her family attended the wedding. The family was against her marriage, and she also received threats from her uncles. Therefore, she cut her ties, did not contact her family (except for occasional text messages to her younger sister and the mother) and never visited her family again. Her mother only saw her once in Pakistan when her eldest child was born. Due to the family pressure, her mother came to see her on the pretence of seeing another relative. She also had issues with her husband’s family.

    ·If she had to return to Pakistan, she would have nowhere to go. Although she stayed in her husband’s family home before moving to Australia, she continuously felt abused by her husband’s family. However, as her husband was present with her, he ensured her safety. Without her husband, she cannot return to the husband’s family home in Pakistan or to her home in Pakistan in [Neighbourhood 2], which she abandoned due to her marriage. Further, she is also aware of the threats and disputes from MQM to her husband. The mother and her children have never visited to Pakistan after moving to Australia 2013.

    ·In regard to the delegate’s concerns regarding the mother’s application being made after her husband’s protection visa application, and also, regarding her choice of not applying a work visa on her own, the circumstances of the mother were as such which led to her protection visa application being lodged after her husband’s application. However, the lodgement dates were quite close to each other. She also submits that she does not have a bachelor’s degree. She only worked as [an occupation 1] at a [workplace] after her marital separation. Without the qualifications or the skills, she was not qualified to obtain a skilled visa or a work visa.

    ·In response to the delegate’s concern regarding the mother’s submission of not being in contact with her family but informing her sister regarding her reunion with her husband, the mother submits that she and her sister are of similar age and thus, used to spend time together before her marriage. However, after her marriage, their communication reduced drastically due to the family pressure on her sister, but they message only occasionally to keep in touch with each other.

    ·In regard to the delegate’s concern for the mother not departing Pakistan in 2008 and only departing in 2013 despite these threats, the mother submits that she had cut off all her ties with her own family and did not have contact with them to ensure her safety. Further, although she faced ongoing verbal abuse and harassment from her in-laws, she felt secure due to her husband being present there and being protective of her. However, as the couple separated, it fuelled further tensions between her and the in-laws. She has never contacted her in-laws since she came to Australia and has never visited. Therefore, the circumstances have worsened, and the mother does not feel safe and secure in Pakistan anymore. Further, the dispute between her husband and MQM adds further to the serious safety concerns of the mother, her husband, and the children.

    ·The mother submits that she has some communication barriers as well as cultural barriers. She has also faced some family stress due to disputes with her husband, and thus, has anxiety and confidence issues. These affect her capacity to explain herself fully in the stressful environments, such as the interviews.

1. On 12 September 2024 the mother appeared before the Tribunal. Her representative did not attend the hearing, but the mother consented for the hearing to proceed without the presence of her representative.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. During the hearing the mother provided oral evidence in relation to her background and claims for protection.

   REFUGEE ASSESSMENT

   Identity and Nationality

3. With this application for protection the father provided a certified copy of the biodata page of his Pakistan passport and a certified copy of his Pakistan family registration certificate that confirms his identity and Pakistan nationality.

4. With her application for protection the mother provided images of the biodata page of her Pakistan passport and that of her children. She also provided her renewed Pakistan passport at the Tribunal hearing.

5. On the evidence before me, I am satisfied the applicants are nationals of Pakistan and that Pakistan is the receiving country for the purpose of this assessment. 

   Marriage

6. In their oral evidence at the Tribunal hearing the father and mother claimed they married [in] 2008. They now have four children with the youngest born [Number] years ago in [Month, Year]. I accept they were married in 2008 and accept that the dependant applicants are their children and that they have two other children.

7. During their respective hearings the father and mother also indicated they had reconciled and were in a married relationship after having separated for approximately a year previously.

8. For reasons noted below, I have concerns with the credibility of their claim to have been separated but I, nonetheless, accept that they are currently living as a married couple with their children.

   Father’s background

9. At his hearing the father claimed he only lived at the one address in [Neighbourhood 1] in Karachi since birth and lived there with his parents, brothers’ wives and their children, his wife, and his children. His sister is now married, and his brothers remain living in [Country]. He said his father has since passed away, but his mother and brothers’ wives and children still live there. The father claimed he did not belong to any particular ethnicity, tribe, or caste.  I accept this information.

10. The father claimed that he completed a Bachelor [degree] from [University] and graduated in 2004. After that he was looking for a job which took some time, so he started working in [work sector] for two years and then a former client hired him to work at a multinational [company] for eight years from 2006/2007 as [an occupation 2]. In 2011 he resigned from his job to travel to Australia. I accept this information.

11. The father claimed that, in 2011, he applied for a student visa to Australia which took nearly a year to process and was granted that visa in 2012. As noted in the delegate’s decision, he arrived in Australia [in] November 2012. In 2012 he returned to Pakistan within a month due to homesickness and stayed at his family home. As noted in the delegate’s decision, he travelled to Pakistan [in] December 2012 and then returned to Australia [in] January 2013. He said in 2016 he returned again to Pakistan because his mother was ill and stayed for less than a month in his family home. According to the delegate’s decision, he travelled to Pakistan [in] September 2016 and returned to Australia [in] September 2016. He has claimed that in 2017 he returned to Pakistan again because his mother was ill and stayed for less than a month in his family home. According to the delegate’s decision, he travelled to Pakistan on that occasion [in] September 2017 and returned to Australia [in] October 2017.

12. In relation to his student visa, the father claimed he was enrolled to do a Master [degree] but did not complete it as the expected educational standards was high. He said the Department refused his student visa. This is corroborated by information in the delegate’s decision indicating his student visa was refused on 30 September 2014. He said he appealed that decision to the former Migration Review Tribunal, but his appeal was refused as he did not complete the required International English Language Testing System (IELTS) level. This is corroborated by information in the delegate’s decision indicating the Tribunal affirmed this decision on 29 May 2015. He said he then appealed this decision to the Federal Court in 2017 but withdrew it in order to lodge his application for protection as he was advised by his lawyer that he had genuine reasons to apply for protection. This is corroborated by information in the delegate’s decision which indicates he sought judicial review [in] June 2016 which was unsuccessful [in] August 2017, and he appealed that decision that the Full Federal Court [in] August 2017 and this appeal was withdrawn [in] October 2017. As noted above, he then applied for protection on 6 November 2017.

    Father’s claims in regard to fear of the MQM

13. As noted above, the father referred to his written claims in respect of fearing harm from the MQM during the Tribunal hearing.

14. Country information before me indicates the (MQM) is a Karachi-based secular political party which advocates for the rights of Muhajirs (Urdu-speaking Muslim migrants from India and their descendants). Formed in 1984, it rose to become a major political force in the 1980s and 1990s. During this period, MQM was involved in widespread political violence in Karachi as its militants fought government forces, breakaway factions and militants from other ethnic political movements.[1]

    [1] 'DFAT Country Report: Pakistan', Australian Department of Foreign Affairs and Trade (DFAT), 25 January 2022, 20220125094359

15. I have considered that the mother provided corroborating evidence in relation to these claims in her application for protection and during her Departmental interview and her Tribunal hearing.

16. Nonetheless, for reasons I have outlined below, I am not satisfied of the credibility of these claims due to discrepancies in the father’s evidence, concerns in relation to his documentary evidence, the plausibility of aspects of his claims, and a lack of corroborating country information.

17. There were discrepancies in the father’s evidence. During his Departmental interview the father said that he had dropped out of university due to the harassment from the MQM but at the Tribunal hearing he said that he had completed his university degree. When I raised this concern, the father said he has a bachelor’s degree from his university in Pakistan but when he said he ‘dropped out’ he meant he was not attending university every day but once a week or twice a week. I am not convinced of this explanation as indicated in his Departmental interview he said he dropped out due to their harassment and then focused on seeking employment and stayed at home which does not reflect his explanation that he meant that he just did not attend university as often.

18. During his Departmental interview the father said he stayed at home and did work much after leaving university but at the Tribunal hearing he said had a professional job for eight years. When I noted this concern, the father said after university, he tried to find a job but did not get one straight away and sent many job applications and obtained small jobs to get experience but then eventually one client hired him. I am not satisfied his explanation overcomes my concern as it is not a sufficient reason for not mentioning having worked for such a long period in one company whilst seemingly under constant threat and harassment from the MQM during this time.

19. At his hearing the father claimed the police came to his house to take his statement in relation to the attack on him that occurred [in] October 2017 but the FIR he provided states they took his statement whilst he was in the hospital. He also made this latter claim during his Departmental interview. When I noted this concern, the father said the police took his statement and came to his home many times and asked him questions at home as part of the investigation. He said it had been a long time and he did not read the FIR. Again, I am not satisfied of this explanation as during the hearing he said he reported the attack to the police and I asked him when he did that, and he said it was the same day the attack occurred and when I asked him if he went to the police, he said no and that they came to his house and took his statement and photographs and then made the FIR. When I asked him how they knew about the incident such that they came to his home, he said people informed the police. He then said that the incident happened at 6pm and then he went to hospital and then the police came to his home that evening around 8.15pm and took his statement and made the FIR. His comment that it had been a long time and he did not read the FIR suggests he was relying on the information in the FIR rather than his own recollection of what he claim occurred which further adds to my concern.

20. In the father’s written statement lodged with his application for protection, he claimed that when he visited Pakistan in 2016, he was in hiding but at the hearing he said was staying at his parents’ house and that the MQM knew where he lived. When I noted my concern in relation to his claim to have been hiding and yet was actually staying at his family home, he said he did not say he was in hiding but said he confined himself at home with less movement and that when he referred to ‘hiding’, he meant in the sense of confinement. Even if I were to accept this explanation as plausible, I remain concerned that, despite his claimed fear of the MQM, he returned to Pakistan several times and stayed in his family home despite his claim at the hearing that the MQM members knew where he lived and had the ability to find out when he returned to Pakistan. When I raised this concern, the father agreed that the MQM had a big network and links everywhere and can reach and harm anyone easily and have spies. He also said he was not willing to go back to Pakistan but had to return due to his mother’s health and he did not spend much time there and did not have a plan to stay for long and came back within a month. I noted to the father that he had also claimed to have returned to Pakistan in 2012 because he was homesick. In response he said he did return then, but his family pushed him to return to Australia. I find his response does not overcome my concern that despite claiming he feared the MQM, whenever he did return to Pakistan on three occasions, he lived at his family’s home where he has said the MQM could easily have found him and his actions in this regard do not correspond with his claimed fear.

21. I have other concerns in relation to the father’s evidence as noted below.

22. The fact the father remained in Pakistan for so many years despite claiming to fear harm from the MQM also causes me to doubt the credibility of his claims. He claimed he feared the MQM from 2005 but remained in Pakistan until 2012.  Further, despite claiming to have left Pakistan due to this fear in 2012, he decided to apply for an Australian student visa which he acknowledged took a long time to be granted. He claimed during the hearing that he had to save money, but I note that applying for student visa and studying in Australia would have been expensive, and I find his actions in this regard is not reflective of someone who fears for their safety. In response to this concern at hearing the father said that he considered that the abuse from the MQM was just verbal and not physical, so he stayed at home in Pakistan and looked after his mother and started a career and was busy with his study and looking for work. He said he then got married and had children but then realised his family was now involved in this issue and considered moving overseas. He said he talked to his family, but he was not financially sufficient and would need to spend one to two years in his job to save money. He also sold gold and his brother helped with the finances and it took one year to get the student visa. He said his job in Pakistan also gave him a good amount to pay for the Australian university fees and English classes and he also had to save the pocket money to spend in Australia. In relation to the cost of the student visa he said his first thought was to save himself and study abroad for a good career and he was not able to fulfil the requirements of other Australian visas and it was a financially onerous to manage the fees for a student visa. In submissions received after the hearing it also reiterated the father’s response noting he had family responsibilities looking after his parents and was also trying to look for employment. It also submitted the pressure exerted by the MQM was mostly verbal during that time, and the father would shrug it off by saying that he was busy to attend to their requests and would make excuses to avoid their requests. However, with time, the threats increased. It noted that, during this time, the father got married in 2008 and had his first child born in 2010. It was then that the threats from MQM started to become more serious and they started to threaten to hurt the father’s family including his wife and child as well. It submitted during this period the father was trying to escape from Pakistan due to these threats and started the visa application process for the Australian student visa which took around 1.5 years.

23. I find the father’s oral response above just reiterates my concern that applying for a student visa took time and was very costly for him and not reflective of somebody who was in fear of their safety such that they would take such a course of action to leave their country to save themselves but reflects he had other motives to apply for a student visa including to enhance his career. This is supported by his own evidence when he claimed at hearing that he did not consider going to [Country] as the university level was not good there and he wanted to pursue his education. Further his claim that at the time he only considered the threats verbal is at odds with his written claim his application for protection that he left Pakistan in 2012 because he feared the MQM. It is also at odds with his oral evidence at hearing that the threats from the MQM started after he finished university in 2004 and included threats of kidnap.

24. I also have concerns with the claim that, although the father did not respond to the pressure from MQM since he met them in 2001/2002 at university as per his oral evidence, they only decided to physically attack him for not responding to their pressure many years later in 2017 despite the fact he remained in his family home from 2004 until 2012. When I noted this concern, the father said that he is a human and not at home all the time and went out close to his home. He said they tried to approach him before and participate in their organisation and he refused and fortunately they did not harm him in 2016. He said that that they tried to harass him with words and emotionally harm him. He also said the MQM is stronger now especially in Karachi.  Again, I am not satisfied his response directly addressed my concern. His claim that he went out close to home is not reflective of the fact that he appears to have continued having a normal life after leaving university including getting married and working and having a permanent job in a company for eight years. Even if I accept there were still harassing him with the words it does not explain why they did not harm him until 2017.

25. The AAT submission received on 27 August 2024 stated the threats the father received became more direct and violent in 2016 and the threats he received in 2016 caused him considerable fear and yet I note he did not lodge an application for protection after returning to Australia after his 2016 trip to Pakistan but yet returned to Pakistan again in 2017. The above submission explains that the father initially believed that the threats were manageable and that returning to Pakistan was safe and it was only after the physical attack in 2017 that he realised the severity of the danger he faced and his subsequent application for protection reflects this change in circumstances. I find there is a contradiction in this submission given it also says that the threats he received in 2016 caused him considerable fear. When I noted these concerns to the father at hearing, he said that when he went to Pakistan in 2016, he went to see his mother and the MQM demanded money from him and to participate in illegal activities and he refused them and came back to Australia. He said he lodged his application for protection in 2017 as it was life threatening situation and had become physical and he applied for his family as well and spoke to his lawyer and he said if he had genuine evidence, he could lodge an application for protection. I remain unconvinced of this explanation given the above written submission claims the threats in 2016 became more direct and violent. The father also acknowledged that the people from the MQM continued to demand money from him and be involved in illegal activities in 2016 and therefore he continued to be purportedly harassed at that time by them. Further during the hearing, he referred to their demand for money during that time as an indirect threat and yet he did not lodge an application for protection when he returned to Australia after that occasion.

26. At his hearing the father said that when he talks to his friends in Pakistan, they have said that the MQM are still asking about him and when he was returning to Pakistan and ask personal questions about his family. I also have concerns with the father’s claim that the MQM would still be interested in him and pressuring him for such a long period of time given he was a mere university student when they met him, and he claimed at the hearing that they had many people helping them. When I noted this concern to the father at his hearing, he said that they keep trying to pursue him and contact him and he does not know what state of mind they have. He also said they need public strength, and he does not know what their thoughts are about him. Although I do not expect the father to know what is in the mind of these people who have been persistently harassing him for so many years, I remain concerned with the credibility of the claim that they have done so when there are many other people that support and assist them, and he has refused their requests for so many years.

27. I also noted the father at his hearing that I could not find any country information to corroborate claim that the MQM would engage is such behaviour towards someone of his profile who merely refused to join them and that they would continue to pursue them for so many years. In response he said this party is very strong and referred to a saying that once you are attached to a party, you cannot get rid of it and said he had seen many examples of this, and they try to influence people for a long time and never forget you. His representative at the hearing also said the MQM assisted him to obtain admission to university so there might be an expectation to repay the loan. I invited the father to provide further country information in support of his claims after the hearing and I note none were provided in his post-hearing submission received on 11 September 2024.

28. I also have concerns with the documentary evidence the father provided in support of his claims.

29. During his hearing the father claimed that after he was attacked in 2017, which he claimed occurred at around 6pm, he went to a small dispensary, that is, not a ‘proper’ hospital. They treated him and discharged him after 2 to 3 hours. Initially he said he had minor fractures and bruises and they put medicine on his hands and bandages. I noted to him that the letter from the hospital he provided indicated he did not suffer any bone fractures. He said he did not say the word ‘fracture’ and said they did not do any test such as a magnetic resonance imaging (MRI) or an x-ray. However, I am satisfied the father did say the word ‘fracture’ in his oral evidence. He then said he returned home from hospital around 7.15/7.25pm. He then said that the photos he provided with his application for protection were photos of his injury taken when he was back at home and taken by his sister-in-law for the purpose of giving evidence to the police. I asked him why his sister-in-law would take photos of his injuries as the police could have done that and he said he did not know the process and did this in order to give the police evidence. I then noted the police would have seen his injuries themselves and he then said the police took photos themselves as well. The father claimed at hearing that the police came to his home at 8.15pm to check the situation and take his statement and took the photos in order to make a FIR. His sister-in-law gave the police the photos she took. I asked him how his sister-in-law was able to take photos of his injuries and print them in such a short amount of time and he said they had a printer home. I then noted to the father that the photos, the originals of which he showed me at the hearing, were printed on photo paper.

1. At the hearing I also asked the father what the photograph of the steering wheel he had provided was meant to show and he said he was not sure. I then noted I could not see any damage to the car on that photo.

2. I also asked the father why he obtained a translation of the FIR in Pakistan. He said that this was normal for further proceedings in order to give to institutions. He confirmed he obtained it to apply for protection visa as he talked to his lawyer when he was in Pakistan two days or so after the incident. I then asked him when he obtained the translation, he said the next day although he was not sure, and it was two to four days after he was feeling better. I noted the translation was stamped [in] October 2017 which was two days after the incident, and he agreed. He also said he was able to get the FIR after the police came back to his house after two days and gave it to him.

3. I have concerns that it appears that the father translated the FIR two days after the incident which seems odd timing given he had purportedly just been injured and experienced a traumatic physical attack and did not leave Pakistan for approximately ten days. When I noted this concern to the father, he said he was able to get the translation quickly because the place he obtained it was close to his house. Again, I am not convinced of this explanation given he claims he was injured after the attack, and he had quite some time remaining to have obtained the translation before he left Pakistan or asked someone else to do it for him. I am concerned that the fact that he did obtain a translation two days after the purportedly take appears to have been done for the sole purpose of his application for protection on return to Australia and contributes to my concern as to whether this attack even occurred.

4. I also noted to the father at his hearing that information published in a report from the Australian Department of Foreign Affairs and Trade in 2017 (DFAT) about Pakistan noted that document fraud is endemic in Pakistan, and it is relatively simple to produce fraudulent FIRs and there are credible reports of police in Pakistan accepting bribes to verify fraudulent FIRs. Further, DFAT noted that it did not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[2] I noted to the father that, given this and my others concerns, I may have concerns with the genuineness of the FIR. In response he said it was genuine and he did not have links to bribe someone to do it. In the post-hearing written submission, it further noted the Pakistani police complaints are known to be handwritten, and the Pakistani police is notorious for occasionally not following the strict procedures. Further, the FIR was according to the correct Pakistani procedures and the document’s authenticity should be accepted by the Tribunal. I find this submission somewhat contradictory.

   [2] ‘DFAT Country Information Report Pakistan’, DFAT, 1 September 2017, CISEDB50AD5515

5. I have considered the father’s response and the written submissions in response to my concerns in regard to the FIR but given the totality of the concerns I have in respect of these claims and the above country information I am not satisfied of the genuineness of the FIR provided.

6. The written submission received on 27 August 2024 to the Tribunal also noted that the medical report, while basic, was issued by a small local hospital and accurately reflects the injuries the father sustained during the attack. In relation to the medical report provided I noted to the father that it did not describe his injuries in any detail and speculated as to the cause which does not reflect his claims of what happened. I also noted it did not indicate what tests were conducted to determine no bones were fractured. I also noted it did not appear to reflect what would be expected of a medical certificate. I also noted to the father that in the above 2017 report by DFAT it stated that fraudulent medical records are common. I noted to the applicant that given these concerns I may have concerns with the genuineness of this document. In response the father said that he understood my point and that people fabricate matters from Pakistan. He said this was not a big hospital and it was a small dispensary and there was no x-ray or MRI and that you could find this hospital on Google. He said the report was genuine. I note a Google search did locate this hospital. Nonetheless I am not satisfied the father’s response overcame my concerns with this document and I am not satisfied of its genuineness.

7. The above written submission also noted that the photographs submitted as evidence of the father’s injuries and the damage to his vehicle were taken after the police conducted a forensic examination of the car and any discrepancies in the size and appearance of the bullet hole should be attributed to this examination process. It submitted the photographs, while perhaps not capturing every detail perfectly, are genuine and were taken shortly after the incident.

8. In relation to the photographs the father provided in support of his claim that his car was shot at, I noted to the father at his hearing there was no supporting evidence that these were photographs of his car or that they are gunshot holes and there is no date as to when these photos were taken. In response he said the photographs were taken by police and the photographs are not clear and the size of the hole in one photograph was bigger than a bullet, but this was his car. I have considered the father’s explanation, but they appear to be assertions and as noted there is no other objective evidence to support his claims in this regard. I noted to the father that there was no supporting evidence to establish that these photographs were taken by the police. He merely said that he did take these photographs after the forensic exam. As he merely asserted his claim, I remain concerned about these photos and find they are of little corroborative value.

9. I also noted to the father that the photographs he provided purportedly of his injury sustained in this attack was not necessarily evidence of what he claimed caused the injuries and there is no date on the photographs to indicate when they were taken. I also noted I may find his explanation in relation to how his sister-in-law was able to take and print photos within an hour and give it to the police difficult to believe particularly as the originals have clearly been printed on photo paper, not normal paper, and is the same photo paper as the photos of his car given to him by police. In response the father said that they have a colour printer and paper and they do not do professional photographs, so the photographs do not have dates. He said they also have the same photo paper at home. He said it is the same photo paper as the photographs taken by the police and it is a coincidence. In the post-hearing written submissions, it was also submitted that it is very common in Pakistan, especially in bigger cities such as Lahore and Karachi, for the people to own a printer at home and print photographs at home. Whilst his explanation is not impossible, the other concerns I have about the credibility of his claims overall, I remain doubtful about the coincidence that his family printed photographs at home on the same paper as the ones printed by the police and I am not satisfied of their genuineness.

10. During the mother’s hearing I noted to her that I may find her husband’s claims to be lacking in credibility due to a number of issues with his evidence including inconsistencies, concerns I had with the documentary evidence he provided, plausibility, and a lack of corroborating country information. I noted to her that if his claims were not accepted and he is found not to be owed protection, that she and her children may not meet the criteria for a protection visa on the basis of being members of his family unit or in their own right on the basis of their own fears in relation to this claim. She made no comment in response.

11. Having considered the evidence before me overall, I do not accept the father’s claim that he was approached by the MQM in university, that they assisted him to be admitted to university and they subsequently harassed and pressured him to join their activities and threatened him and physically attacked him in 2017 for not acquiescing to their demands and have continued to seek him out. I am not satisfied he or the other applicants have a well-founded fear of persecution in relation to these claims.

    Mother’s background

12. During the hearing the mother said that she had not been diagnosed with any mental health condition, but she believes she has anxiety and depression due to worries about the future and returning to Pakistan. She said doctors in Australia did not prescribe her medication but gave her strategies such as walking and exercise. She indicated she felt well enough to proceed with the hearing. Whilst I accept the mother may feel anxious and depressed, she has not been diagnosed with any such condition and I am satisfied she was effectively able to participate in the hearing. I am not satisfied the concerns I have outlined below in respect of aspects of the credibility of her claims are attributable to her mental health condition or other purported communication and cultural issues.

13. At the hearing the mother said that she received assistance from a community service in [Location] to prepare her application for protection. She could not recall the name of the organisation. She said she knew what was written in her application and it was read back to her. I noted to the mother that in the application it indicated she had not received any assistance. She then said that when she said ‘assistance’ she meant assistance by way of advice in relation to options she had and departments she could approach and was only shown direction. This would suggest she did not in fact receive assistance in preparing her application for protection from the above community service and I am not satisfied on the evidence she did.

14. The mother claims she is of Hazara ethnicity on both sides of her family and lived in her family home in Karachi before living in her husband’s home. She initially said her husband does not belong to a particular ethnic group.

15. The mother claimed she lived with her husband in [Road 1] in [Suburb] for three to four years but separated from her husband in June 2017 and moved into another residence at [Road 2] in [Suburb] with her children for more than 18 months. I note that at the time of her application for protection in November 2017 it does indicate that she lived in the [Road 2] address.

16. The mother also claimed that she had her parents, [sisters] and [brothers] and uncles and aunts remaining in Pakistan. She said she was not in contact with her family other than infrequent contact with one of her sisters as that sister is under pressure from her family not to talk to the mother. She said the last time she spoke to her mother was after she got married in Pakistan and had not spoken to her since she came to Australia. She said she does not have contact with her father and brothers, and they did not attend her wedding. She also said she did not have contact with her husband’s family because she married against their caste as they are Punjabi, and she is Hazara. I noted to her that she had previously said her husband did not belong to an ethnic group and she said it is not an ethnic group but just a language and she said Punjabi to explain the difference in caste as Hazaras only marry Hazaras.

17. When I asked the mother what she knew about the status of her husband’s application for protection she said his case was still ongoing and she did not know the outcome and she did not know, and he did not tell her what the outcome of his application was before the Department. I noted to her that she lived with her husband, and they were married and queried how she could not know this, and she said all she knew was that his case was ongoing, and she did not know if it was approved or not. I am not convinced of her claim in this regard given this is something one could expect a married couple to discuss given it had significant implications for their future. I found her evasiveness in this regard contributes to my concerns about the credibility of her protection claims discussed below.

    Mother’s fear of harm due to marriage outside caste

18. During the hearing the mother claimed she feared returning to Pakistan because she feared her own family and the Hazara community and her family-in-law because she married outside the Hazara community.

19. The mother claimed she had been engaged to her uncle’s son since childhood and this created issues when she wanted to marry her husband and she was eventually able to marry her husband because her family feared she would run away. The mother claimed that she had met her husband in 2006/2007 as he used to sit at a cafe near her college. They exchanged numbers and started talking but she could not pursue it because she was engaged to someone else. I asked her why she exchanged numbers with him in those circumstances and she said to talk and start a friendship. I asked her why she would do that if she was engaged to someone else. She said because she was not happy about that engagement, and she was forced into it from childhood. I then noted she had just told me she could not pursue the relationship with her husband because of her engagement and she said she had no idea, and they may force her to marry her cousin and she could not do anything. I then asked why she would exchange numbers with another man if she was engaged to someone else and she said because she did not want to marry that person and get trapped in the family and her marriage with her husband was a love marriage. I asked her if she had been aware of the consequences of pursuing a relationship with another man and she said she felt an attachment and connection to her husband. When I asked her what happened after, she said she thought she had better marry her husband as soon as possible or run away or the consequences will be worse. She said she told her mother that if she helped her marry her husband there would not be any problems and her mother agreed to the marriage on the basis she not contact her family again. She said she married her husband and her mother and sister, and other ladies were present at the wedding but no others from her family attended. She said no one came from her husband’s side other than his brother. His family were shocked and fearful of her family. She said his family did not support the marriage but were quiet about it as they did not want to get involved as they did not want any fights. She then moved in with her husband’s family. She claimed when she lived in her husband’s home she had to suffer for many basic necessities as her husband’s family were worried he would be killed by her family. She said it was abusive and she faced torture but when I asked her what she meant by that she said she was mentally tortured and deprived of food. When I asked her why they would treat her that way, she said because she did not have any other option. I noted that I did not understand why they would mistreat her, and she said in Pakistan the family-in-law does not respect daughters who have married against their family’s will and are tortured in domestic ways. I then noted that they had taken her in, and she lived with them for a number of years. She said she lived there because of her husband and, if he was not there, the situation would be different, and he would have taken care of her. She said she was not physically harmed by them. She also said no one from her family harmed her after her marriage because she did not have any relationship or contact with them. She said her husband is still in contact with his family and they tell him she will die, and her own family will not spare her. I asked her why they would say that after so many years and she said because it is difficult to forget. She claims her own family will kill her if she returns. She confirmed she only fears her family in relation to their opposition to her marriage.

20. The father has provided corroboration of the mother’s claim in relation to experiencing issues when they married where he said in his Departmental interview that their marriage was not a happy one due to issues in their families as his father and his wife’s uncles and father also did not agree to their marriage. I note he claimed he did not fear harm in Pakistan for these reasons and has not raised such a claim before the Tribunal. Nonetheless, I have concerns with the credibility of these claims as outlined below and his corroboration does not overcome these concerns.

21. I noted to the mother at hearing that I may have concerns with her claim that her family is ethnically Hazara. I noted to her that she did not have typical distinctive east Asian features of a Hazaras,[3] she has provided no corroborating evidence that she can speak Hazaragi other than her assertion at the hearing and in her application for protection she did not claim to speak Hazaragi. Further her application for protection noted ‘Pakistani’ as her ethnic group and not Hazara. I also noted to her that country information indicates most Hazaras are Shia, and she has claimed to be Sunni.[4] I also noted to her she had not provided any other corroborating evidence to corroborate her claim that she was Hazara. In response she said that she had been in Australia for almost 11 years, and she cannot say much about her features. She said there are many Sunni people in her family who are Hazara. She said in regard to her claimed ethnicity in her application for protection she said she had the assistance of a community service when completing her application and she did not understand and wrote Pakistani in respect of her ethnic group. However, as noted above her evidence suggests they did not actually assist in preparing the application, so I am not convinced of this explanation though it is possible she did not understand the question when completing the application herself. Whilst some of the individual concerns I raised may have a plausible explanation including that some Hazaras are Sunni and the mother may not have understood the relevant question in respect of her ethnicity in her application form, but when considering the totality of my concerns about this claim, I do not find the mother’s explanations overcome them.

    [3] 'DFAT Country Report: Pakistan', DFAT, 25 January 2022, 20220125094359

    [4] Ibid.

22. I also noted to the mother that I had concerns about the credibility of these claims and her continuing fear in relation to them given it appears from her own evidence that her mother agreed to her marriage to her current husband. I also noted discrepancies in her evidence where she told me that she had not seen her family since she married but in her Departmental interview, as recorded in the delegate’s decision, she said her mother visited her when her children were born and the written submission to the Tribunal also noted this. She said it slipped her mind to mention that her mother visited her when her child was born but she came in secret. She said her mother only came to the hospital to visit her and see her child and she did not have any interaction with her when she came and mentioned this in her submission. I am also not convinced that it slipped her mind to mention given I asked her directly if she had seen her family since her marriage.

23. I also noted to the mother that she told the delegate in her Departmental interview that in 2019 that she was in contact with her mother, and they had a good relationship. However, she had told me that she had not spoken to her since she came to Australia. In response she said that her contact with her mother was not direct, and she would send voice messages and she would ask her sister about her mother.  Again, I am not convinced of this explanation as it does not reflect what she told the delegate, and she did not qualify those comments at the time as it being only contact with her mother via voice messages and through her sister which also does not correspond with her comment to the delegate that they had a good relationship.

1. I also noted to the mother that there is no evidence her family sought to approach and harm her since she married her husband, and no harm came to her from them since her marriage in 2008 and until she left Pakistan in 2013. Further it appears that despite her claims of mistreatment from her husband’s family, they permitted her to live with them for a number of years. I also noted she has not provided any supporting evidence in relation to this claim. I also noted she did not lodge an application for protection until five years after arriving in Australia which may suggest she did not have a genuine fear in relation to this claim.

2. In response to the above concerns the mother said that since she married in 2008 her family would exchange words against her and pass comments asking if people had seen her and so she had to be careful. I asked how she knew this if she did not have contact with them and she said she was in contact with her younger sister and she would tell her to be careful and she used to cover her face when she went out. I am not convinced of this explanation as she was residing in her husband’s home and did not claim to be in hiding and so her family could have found her if they were genuinely interested in harming her.

3. The mother also said that when she applied for the visa to come to Australia, she was totally dependent on her husband, and they knew they could not go back as it was not safe and then her husband had issues with his visa, and they knew they were safe in Australia. Even if she had arrived on her husband’s student visa, this would not have prevented her from applying for protection shortly after she arrived in Australia if she had genuine fears of returning to Pakistan at that time. 

4. The mother had no other comment in response to the other concerns I raised.

5. On the evidence before me I do not accept the mother and her family are Hazara. I do not accept her family and the family of her husband were opposed to the marriage and that her family did not contact her again after her marriage and that her husband’s family mistreated her for this reason.

6. I am not satisfied the mother, or the other child applicants, have a well-founded fear of persecution in relation to his claim.

   Mother’s fear of harm due to previous marital separation

7. During the hearing the mother said when she separated from her husband in June 2017. She said her husband told his family and that he thought she was having an affair and they have not forgotten it and they told him to send her to Pakistan and they will treat her ‘their own way’. I told her that happened now a number of years ago and she said it is still in their mind despite the years that have passed. I asked her how she knew they still felt that way, she said because they are still in contact with her husband, and it has been many years since she spoke to them, and they tell her husband to send her to Pakistan. When I asked her why they would say that if she and her husband have since reconciled, she said because they know she had studied here and is looking for a job and doing good things for her future and they want her to go back, and her family should kill her. She said they know she is living peacefully and free here. I asked her why they would have a problem with her study and work in Australia and she said it bothers them that she is free to do what she wants in Australia and fears they will kill her. I asked her if her husband has allowed her to work and study and she said she makes her own decisions and does not ask him much because in Australia you can live freely but in Pakistan you cannot. Country information before me does indicate that women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) restricts many women’s personal, social and economic activities outside the home.[5]

   [5] Ibid.

8. During the hearing the mother said that she started work as [an occupation 1] in 2017/2018 in Australia doing [work] in different [workplaces 1] for 4 to 5 years and then stopped in [2019]. She said she worked again in 2021 doing [work] for six months and then in 2022/2023 she started work in a [workplace] where she presently continues to work part-time. She also said that she completed a certificate in [a second subject] in 2021 and in 2023 completed a certificate [and] in 2024 completed a diploma in [the second subject]. I noted to the mother that it appears she has continued to study and work, and her husband has not taken an issue with it, and she said he des not have an issue with it but when they have an argument, he will say she cannot do those things in Pakistan but in Australia he knows he cannot do anything. I said if he does not have an issue with what she is doing here then why does his family have that concern, she said his family do not want to think broadly and they think she should be subjected to torture. I asked her if she thought her husband could protect her from the behaviour of his family and she said from 2008 to 2013 he protected her from his family but since he was attacked by the MQM the situation has changed and his life is in danger. As noted, I have rejected this latter claim. Further the fact that she has claimed that he could protect her from his family is at odds with her claim that he would not permit her to work and study in Pakistan.

9. In his evidence before the Department and the Tribunal the father corroborated the mother’s claims that they had separated for a year in 2016/2017 but had since reconciled. During that interview he said he and his wife had separated because she did not listen to him, and he did not want her to work but she insisted and other concerns he had about her working with other men. He also confirmed she moved back into the family home due to financial pressures.

10. In 2022 the Australian Department of Foreign Affairs and Trade assessed that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.[6]

    [6] Ibid.

11. I have considered the above information and the husband’s corroboration, however, despite this, I remain concerned with the credibility of their claim that the mother separated from her husband in Australia and lived elsewhere for the reasons claimed.

12. I noted to the mother that the delegate asked her for evidence to support her claim that she moved out of the family home in Sydney in June 2017 and lived at another address for approximately 18 months, but she did not provide any evidence of that, nor did she provide any evidence to the Tribunal. In response she said that when she separated from her husband, she looked for rental options as she did not have anything in her name such as a lease. She said a lady from the community service told her someone was looking for someone to rent to, but the lease will remain in her name as the mother did not have anything in her name and that is why she did not have any bills in her name as she used to pay her rent in cash and the owner of the property refused to provide her with evidence. Although it is plausible that she paid rent in cash and did not have any have property utility bills in her name, I still find it difficult to believe she could not provide any other evidence of having lived at another residence for such a long period in Australia.

13. I also noted to the mother that I had done an internet search of the [Road 2] address in [Suburb] she claimed she resided in when she was separated, and it appears to be an apartment and not a granny flat as she had claimed. In response she said she had gotten confused in her submission, but it should have referred to a two-bedroom apartment and she did not have any knowledge of what a granny flat is although it could be two rooms as well. I note the apartment I found online at this address is a two-bedroom apartment but that is common. Further, I am not convinced of the mother’s response given I find it hard to believe she confused an apartment with a granny flat and the written submission to the Tribunal specifically claimed that due to her circumstances and not having a previous tenancy history that she secured the accommodation in the form of granny flat on a cash basis.

14. I also provided information to the mother pursuant to s 424AA of the Act in relation to information provided in her December 2017 application for work rights in respect of her bridging visa which had been included in the Departmental file. I noted to the mother that although she provided the [Road 2] address on that application, the bank statement she attached, which was also dated in December 2017, noted her address as the [Road 1] address. I also noted that she had also attached a receipt from [Hospital 2] dated in November 2017 which also noted her address as the [Road 1] address. I noted this information was relevant because these documents were issued at the time she claimed she was separated and living away from her husband at the [Road 2] address in [Suburb] but these documents indicate her address to be the same as her previous address where she previously resided with her husband. I noted this may lead me to find that she never separated from her husband and lived at another address for the reasons she had claimed. In response she said that her family used to go to a medical centre in [Suburb] and the [Road 1] address is registered with that practice and is in the system and she had no paperwork to tell them that her address had changed. She had no other comment or response.

15. Although the mother’s Departmental application for work rights does refer to having separated from her husband and moved out and this is one of the reasons she sought work rights, this was in accordance with her claim in her application for protection lodged in the month prior, so this does not overcome my concern. In regard to her explanation regarding why her old address was noted on the hospital receipt, there is no other evidence to corroborate her claim that this was due this address being recorded in the medical centre she attended, and I think it reasonable to presume she would have had to confirm her current address when visiting a hospital.

16. On the evidence before me I do not accept the mother ever separated from her husband and lived elsewhere for a period of time in Sydney due to the reasons she has claimed and that she was accused of having an affair by her husband and his family. I do not accept her claims in relation to her purported marital disputes in relation to the mother working in Australia.

100.   I have not accepted her claims in relation to the objections to her marriage or that she was mistreated by her husband’s family for this reason or that she is Hazara.  I noted to the mother that even I were to accept that she had separated from the father for a year or more as claimed, they have now reconciled after a relatively short time a number of years ago and have since had another child so I may find she will not face a real chance or harm amounting to serious harm. In response the mother reiterated her fear of returning to Pakistan as the situation in Pakistan is different to Australia. Her response did not overcome the above concern.

101.   Even if I accept the parents had separated for the reasons claimed, they have since reconciled and have had another child and the mother has continued to be able to work and study in Australia. Further, if they return to Pakistan, they will return as a married couple and the wife has said she would be protected by her husband from her family, and I am not satisfied on the evidence her husband would not permit her to work and study in Pakistan. I have also not accepted the parents claim in respect of the father’s fear of harm from the MQM such that he will face a real chance of harm in that regard. In the circumstances I am not satisfied she, or the dependant applicants, will face a real chance of harm that would amount to serious harm from her husband’s family or any other group or person in regard to her previous separation from him and because, as a woman, she has worked and studied in Australia and may wish to do so in Pakistan.

102.   I am not satisfied the mother, or the dependant applicants have a well-founded fear of persecution in Pakistan in relation to this claim.

103.   The applicants do not meet the requirements of the definition of refugee in s.5H(1). I am satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

COMPLEMENTARY PROTECTION ASSESSMENT

104.   I do not accept the father’s claim that he was approached by the MQM in university, and they assisted him to be admitted to university and they subsequently harassed, pressured, and threatened him to join their activities and they physically attacked him in 2017 and have continued to seek him out. I am not satisfied the applicants will face a real risk of significant harm in Pakistan in relation to these claims.

105.   I do not accept the mother’s claim to be Hazara, that her family and her husband’s family opposed their marriage for the reasons she has claimed. I also do not accept she separated from her husband in Australia for the reasons she claimed and that she was accused of having an affair by her husband and his family. I am not satisfied the mother and dependant applicants will face a real risk of significant harm in Pakistan in relation to these claims.

106.   For reasons already noted, even if accept the parents had separated for the reasons claimed for up to 18 months as, I am not satisfied the mother, or the dependant applicants, will face a real risk of significant harm from her husband’s family or any other group or person in regard to her previous separation from him and because, as a woman, she has worked and studied in Australia or will do so on return to Pakistan. I am not satisfied they will face a real risk of being arbitrarily deprived of their life, or that the death penalty being carried out on them, or they will be subjected to torture as defined in the Act, or that they will be subject to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.

107.   There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

108.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

DECISION

109.   The Tribunal affirms the decision not to grant the applicants a protection visa.

Rebecca Mikhail
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

2. 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.

3. 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).

4. 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 Attachment B.

5. 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 Attachment B.

   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.

   ATTACHMENT  B-  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.

   …