1931275 (Refugee)

[2022] AATA 2662

1931275 (Refugee) [2022] AATA 2662 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Caitlin Kamala Caldwell

CASE NUMBER:  1931275

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Alison Murphy

DATE:30 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 June 2022 at 10:53am

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Court remittal – religion – converting between religious sects – particular social group – women in Pakistan – fear attacks by family – fear of honour killing – mental health issues – gender-based violence – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 17 April 2014 and the delegate refused to grant the visas on 8 October 2015. The Tribunal first determined this matter on 15 November 2016, affirming the delegate’s decision. [In] 2019 the Federal Court of Australia quashed the Tribunal’s decision by judgment and remitted the matter back to the Tribunal to be determined again. In doing so the Court held that the Tribunal made an erroneous finding of fact that was material to its overall assessment of the applicant’s credibility without a logical, rational and probative foundation.

3. The first named applicant (who will be referred to as the applicant in these reasons) appeared before the Tribunal on 23 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a telephone interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. 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.

   ISSUE

10. The issue in this case is whether any of the applicants is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

11. There is no dispute that the applicants are citizens of Pakistan. The applicant and her husband (the second named applicant) travelled to Australia on apparently genuine Pakistani passport; copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Pakistan and they have been assessed on that basis by the Department. The Tribunal finds they are Pakistani citizens and has assessed their claims against Pakistan as the country of nationality and the receiving country.

12. The two eldest children of the applicant and her husband (the third and fourth named applicants) were born in Australia. A copy of a Pakistani passport in the name of the third named applicant is contained on the Departmental file, as are copies of the Victorian birth certificates for both children. The delegate cited country information indicating that Pakistan’s Citizenship Act provides that a child of a Pakistani citizen will be a citizen by descent and that is consistent with the third named applicant being issued a passport by that country. The Tribunal accepts each of the children to be citizens of Pakistan.

    The applicant’s claims for protection

13. In essence, the applicant claims that she will face persecution and significant harm from her own family and her husband’s family as well as the Pakistani community more broadly if returned to Pakistan for the separate and combined reasons of her gender, her religion and her membership of the particular social groups ‘females from Pakistan’; ‘females from Pakistan who are considered to have dishonoured their family’; ‘females from Pakistan who have changed their sect’; ‘females from conservative Sunni families who have changed their sect’; and ‘females from Pakistan with mental ill-health’.

    The applicant’s personal background

14. The applicant is [an age]-year-old woman from Kasur near Lahore in Punjab, Pakistan. She arrived in Australia in June 2012 aged [age] as the secondary applicant on her husband’s student visa. Since arriving in Australia, she and her husband have had [number] children currently aged [specified ages]. As the younger children were not born at the time the visa application was made on 17 April 2014, only the two eldest children are included in the current review.

15. The applicant was born into a Sunni Muslim family. Her parents had [number] children and the applicant is their only daughter. She has [specified] brothers being [names specified]. Each of her brothers and their families continue to live with her parents near Lahore, Pakistan.

16. The applicant completed her high school education at [a named] School in [year], before attending [two named colleges] where she completed a [qualification] in [year].

17. She was introduced to her husband by a friend and they married in September 2011. At that time her husband was already a student in Australia and the applicant joined him in June 2012 shortly after her own visa was granted. Neither the applicant nor her husband have departed Australia since that time.

18. I accept each of the above matters to be true.

    Credibility

19. These proceedings have been ongoing for eight years and for most of that time the applicant was not represented. Her claims are set out in a number of written statements made at various times during that process and elaborated on in interviews with the delegate (in September 2015), the first Tribunal (in November 2016) and before the present Tribunal (in June 2022).

20. I have listened to the audio recording of the Departmental interview and read the transcript of the first Tribunal’s hearing and her written statements. Having heard her oral evidence at the June 2022 hearing, I am satisfied she has been materially consistent in her claims and evidence throughout these proceedings.

21. The medical evidence before the Tribunal, which spans the period from 2015 to 2022, includes a report by a consultant psychiatrist dated 7 May 2022; a psychological assessment dated 12 October 2016 and a number of reports from various mental health clinicians involved in the applicant’s treatment at [Health Service 1] and [Health Service 2] since 2015. During that period the applicant has been receiving treatment and support for depression, post-traumatic stress disorder (PTSD) and generalised anxiety disorder. As at May 2022, each of those diagnoses are confirmed by a consultant psychiatrist who reports the applicant experiences associated cognitive difficulties and significant psycho-somatic symptoms associated with her mental health conditions.

22. Collateral information contained in the medical reports available to the Tribunal corroborates the applicant’s claims to fear harm from her family and her husband’s family in Pakistan. The medical reports talk at length about the applicant’s estrangement from her own family and her husband’s family because of her religious beliefs including death threats from her brothers and her fear of harm at their hands if returned to Pakistan and her grief at the loss of her mother. It is apparent that she has disclosed her fears of her brothers and her husband’s brother to her mental health clinicians over many years and that her treating clinicians consider her serious mental health conditions have developed in response to those fears.

23. In particular I note the report of [Doctor A] of [Health Service 1] dated 26 May 2015, who records the applicant was referred to her by her GP in the context of concerns about her depressed mood and psycho-somatic complaints. [Doctor A] makes reference to the applicant’s estrangement from her family as a result of her decision to practise the less restrictive Shi’a faith and the anger of her family in Pakistan.

24. Similarly a report from [Ms A] of the [named] Unit at [Health Service 1] dated 7 September 2015 reports the applicant was referred to that service in [specified year] while pregnant with her second child due to depression arising from isolation and estrangement from her family in Pakistan since changing her religious sect, which had angered her family and resulted in death threats in the mail. [Ms A] reports that the applicant is no longer able to contact her mother whom she was close to and her husband’s family are also angry and while she had hopes of returning to Pakistan with her family she now realises it is not safe for herself or her children.

25. The psychological assessment report dated 12 October 2016 traverses the same history in greater detail, noting that [Brother A] and [Brother B] had been controlling and violent towards the applicant from a young age and that as a result of the applicant’s change of sect she and her husband are without support from both sides of the family, with the exception of occasional secret phone contact between the applicant and her mother (after a period of no contact at all). The author states that in her opinion, the applicant is a credible witness who shows a genuine fear of being killed by her brothers and exhibits PTSD, depression and anxiety disorders.

26. The consultant psychiatrist’s report dated 7 May 2022 again recounts the history and reports that the applicant worries day and night about her return to Pakistan, relives the trauma of being physically and emotionally abused by her family and feels hopelessness, helplessness, guilt, despair and suicidal ideation. The report concludes that while the applicant is accepting of treatment, her current anti-depressant medication is not working and requires review, change or augmentation by another psychotropic mediation and cognitive behavioural therapy and notes she and her husband are estranged from both sides of the family and entirely without family or social supports in Pakistan or Australia.

27. While the collateral information in the various medical reports before me are based on statements of the applicant and her husband I note those reports are detailed, consistent with the applicant’s claims, span a period of more than eight years and have informed the applicant’s diagnoses and ongoing medical treatment. In those circumstances I give them significant weight.

28. Further, I note that the applicant’s claims about her experiences in Pakistan are consistent with independent country information about the situation for women in Pakistan. DFAT notes that Pakistan has one of the worst records for gender equality in the world, ranking 153 out of 156 countries. While the Constitution prohibits discrimination on the basis of sex, many discriminatory laws exist including on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. Women’s participation in society in Pakistan is heavily curtailed by their social circumstances, which restrict many women’s personal, social and economic activities outside the home. Rates of gender-based violence are high and it often goes unreported due to stigma and a lack of privacy for victims. Domestic violence is commonly seen as a private family issue with police reluctant to intervene.[1]

    [1] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89 – 3.100

29. As well, DFAT reports that honour killings are common:

    3.96 So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils (see Judiciary, Cruel, Inhuman and Degrading Treatment).[2]

    [2] DFAT Country Information Report: Pakistan 25 January 2022 at 3.96

30. I accept the contents of the medical reports and I accept the applicant to be a credible witness.

    The applicant’s Shi’a religion

31. The applicant’s claims in part relate to her Shi’a religion, which is significant because both her own family and that of her husband are adherents of Sunni Islam. The applicant claims she converted to Shi’a Islam after her marriage in 2011, having been interested in the tenets of that religion from about [year] after being exposed to them while at college. The applicant claims that two of her own brothers, [Brother B] and [Brother A], as well as her brother-in-law [Brother-in-law A], were angered by her conversion from Sunni to Shi’a and this in part motivates their desire to harm her.

32. I note that the applicant gave detailed evidence at the Departmental interview about her conversion to Shi’a Islam and the delegate accepted her conversion to be genuine. The first Tribunal also accepted that the applicant had converted from the Sunni to the Shi’a sect of Islam. I note that in her interview with the delegate the applicant demonstrated knowledge of the differences in Shi’a and Sunni practice including that Sunnis pray five times a day while Shi’as pray only three times; that Shi’as place their heads onto a piece of hardened clay when praying while Sunnis place their heads directly onto a prayer mat and that Shi’as have a different call to prayer than Sunnis.

33. The applicant has consistently stated that she was attracted to the Shi’a sect of Islam after meeting a Shi’a friend at college and observing and being included in the Shi’a practice of her friend and her friend’s family. At hearing before me she gave evidence that her friend and her mother were both permitted to work outside the home and experienced a level of freedom that the applicant had been denied by her brothers, including the freedom to work outside the home, pursue her studies and to choose her own friends and clothing. She said her friend’s brother acted as her friend’s protector and she and her friend believed that the Shi’a faith permitted more freedom to women. After observing the workings of her friend’s household, and attending a nearby Shi’a mosque with her friend, the applicant came to believe that the Shi’a faith was the faith she wished to follow. There being no formal process to convert, she simply started observing Shi’a practices and attending the imambarghah when it was possible to do so without discovery.

34. While it was never possible for her speak openly of her conversion to the Shi’a faith in Pakistan, she told her husband about her interest in the Shi’a faith before they married and he had no objections to her continuing her practice of that faith. In a statutory declaration lodged with the Tribunal, he explains that having already spent some years in Australia he was accustomed to seeing people practise their faith freely and it did not concern him which sect she chose to follow, or even if she followed Islam at all. She never discussed her Shi’a faith with her husband’s family, but rather said her prayers privately in her room and occasionally attended the imambarghah when visiting a friend which raised no suspicions in the household.

35. Country information indicates that there is no formal procedure for converting from Sunni to Shi’a Islam. Rather, a Muslim wishing to convert simply starts following the Ja’fari school of thought, attending Shi’a mosques, and observing Shi’a rituals and ceremonies.[3]

    [3] ‘How To Convert To Shi’a Islam’ 2008, Muslim Online

36. In Australia the applicant attends the Shi’a imambargah at [Town 1] ([named]) when she is able to do so (noting that the applicant does not drive and the COVID-19 pandemic has significantly disrupted in-person worship over the past few years) and otherwise practises her faith at home. Her husband attends a nearby Sunni mosque and their children sometimes attend both mosques with one parent and are encouraged to learn both the Sunni and Shi’a prayers and to choose their own sect when they are old enough to do so.

1. I accept the applicant was drawn to the Shi’a faith from [year] and started to follow the tenets of that faith after leaving her family home following her marriage in 2011. I accept that her husband was aware of this before their marriage and that for the year she lived in her husband’s household in Karachi she practised her religion privately, which drew no attention in the household. I accept that since her arrival in Australia, she has continued to adhere to the Shi’a faith, attending a Shi’a imambargah in [Town 1] when that is possible and teaching her children about both the Shi’a and Sunni sects of Islam.

   The applicant’s fear of harm from her family and her husband’s family

2. The applicant has been consistent in her evidence about her relationship with her family and the violent and controlling behaviour she was subjected to by her brothers [Brother A] and [Brother B]. While that behaviour was present during her childhood, it worsened following the attacks on the World Trade Center in September 2011. At that time her brothers were in [age range] and the applicant was aged [age].

3. In the aftermath of 9/11 [Brother A] and [Brother B], already conservative Sunnis attending a mosque where the imam preached jihad, became radicalised and joined the local branches of the extremist organisations Jamaat ud Dawa (JuW) and Jamaat-e Islami (JI), developing strong fundamentalist views about the role of women that they considered to be founded in Islam.

4. The applicant’s education was disrupted for several years from [Grade] when [Brother A] and [Brother B] demanded that she cease her studies after 9/11, believing that Islam did not permit girls to be educated and required them to stay in their families’ homes and read only the Qu’ran. They did not allow her to go up on the roof of her home in case someone saw her without a burqa or she spoke to a man before she was married. She re-enrolled in school three years later in [grade] with the support of her father, although she was rarely able to attend classes except when her brothers were away from home. Her brothers opposed her enrolment in college, but her father enrolled her without their knowledge insisting that she would continue her studies because he had paid for it. She attended college only when her brothers were out of the city and completed most of her studies from home.

5. While the applicant’s parents and her [other] brothers did not share the fundamentalist views of [Brother A] and [Brother B], her other brothers were unwilling to get involved. Her parents often intervened to support the applicant, but their ability to control their sons lessened as their sons grew older and more established in their organisations. [Brother A] and [Brother B] were frequently violent towards the applicant, slapping her, locking her in her room and on several occasions pointing a gun at her. At times her parents stood between the applicant and her brothers to prevent them from hurting her.

6. I accept the applicant’s consistent evidence that during her time at college, her brothers’ violence towards her escalated as they were angry that she was continuing her studies, leaving the house unaccompanied and associating with Shi’as at college. I accept they locked her in a storeroom of the house on a number of occasions for several days at a time and her mother would bring her food when her brothers were out of the house. She was admitted to university to study a [degree], but her brothers would not permit any further studies and her father did not further intervene.

7. When the applicant was old enough to marry, [Brother A] and [Brother B] wanted her to marry one of their friends from the mosque. The applicant did not wish to do so and her parents did not support such a marriage. A friend introduced her to her husband, who was already studying in Australia, and the applicant’s parents agreed to the marriage. Her brothers were strongly opposed to her marriage to a man who was living in a western country, arguing with her parents. However, her parents allowed the wedding to go ahead and [Brother A] and [Brother B] refused to attend.

8. The applicant’s husband’s evidence is that he was aware before the marriage of the involvement of [Brother A] and [Brother B] in extremist Islamist organisations and their history of abuse towards the applicant. He states these things did not surprise him because she was the only daughter out of [number] children and it is to be expected that women will be abused by their fathers, brothers and husbands in Pakistan. He stated that [Brother A] and [Brother B] did not approve of their marriage because it was not arranged by her parents or brothers and her brothers considered him ‘westernised’ after living in Australia for three years, holding strong opinions about the west.

9. The applicant left her parents’ home in Lahore for the home of her husband’s family in Karachi where she lived until travelling to Australia. While in Karachi, she was approached by a group of about six men while out visiting her Shi’a friend and those men identified themselves as known to her brothers and warned her that she would be killed if she participated in Shi’a activities.

10. I accept the above matters to be true.

    Breakdown of the relationship with her husband’s family

11. As is customary in Pakistan, the applicant went to live with her husband’s family in Karachi following her wedding in September 2011 while she waited for her Australian visa to be granted. Her husband’s mother had died some years before and her husband’s father died shortly before the wedding. The household was run by her husband’s only brother [Brother-in-law A] who lived there with his wife and other members of the extended family. The applicant said her Shi’a prayers privately in her room and did not disclose her Shi’a faith to her in-laws. When her Australian visa was granted, [Brother-in-law A] paid her assurance of support so she could join her husband in Australia after her own brothers refused to do so. Her father had previously signed an assurance of support, but it was rejected by the Australian government because he was retired and did not have enough money.

12. Up until his death, the applicant’s husband’s father paid for her husband’s studies in Australia. When he died shortly before the wedding, this responsibility transferred to [Brother-in-law A] who continued to live in the family home in Karachi. [Brother-in-law A] continued to pay for the applicant’s husband’s studies until the news of the applicant’s conversion to Shia became public when applicant told her mother about three to four months after her arrival in Australia.

13. I accept the evidence of the applicant’s husband to the effect that when he first told [Brother-in-law A] of the applicant’s conversion, [Brother-in-law A] thought he was joking. When he realised it was not a joke, [Brother-in-law A] was very angry and concerned to save the family’s honour. [Brother-in-law A] demanded the applicant’s husband divorce her and return to Karachi with the children, who would be raised ‘the right way’ in the Sunni faith. When the applicant’s husband refused, [Brother-in-law A] immediately cut off his financial support.

14. Without financial support from either side of the family, the applicant’s husband was forced to cease his studies. When the family were facing eviction from their rental property in [Town 2], the applicant and her husband consulted a lawyer in Pakistan with a view to claiming the applicant’s share of her family’s property in Pakistan. The lawyer advised them that they would have to prove the grounds of the family dispute, being the applicant’s conversion to the Shi’a faith. On their lawyer’s advice the applicant had a classified notice published in a Lahore newspaper, proclaiming her conversion to the Shi’a faith. After the notice was published, the lawyer stopped answering their calls and they were unable to contact him again. The applicant did not receive any money from her inheritance.

15. An untranslated copy of the classified notice was provided to the Department and a translation provided to the Tribunal. The classified notice is brief, stating that the applicant has changed her sect from Hanfia (Sunni) to Jafaria (Shia) and any future issues concerning her are to be dealt with in accordance with Shia jurisprudence.

16. I accept that the publication of the classified notice greatly angered the applicant’s brothers, who have made death threats to the applicant and her husband. It also angered [Brother-in-law A], who was informed of it by the applicant’s brothers. The applicant’s husband states he no longer calls his brother, but [Brother-in-law A] still occasionally calls him. In a recent conversation [Brother-in-law A] told him it had been over a decade since he last visited Pakistan and he should return. When the applicant’s husband refused, [Brother-in-law A] became very angry and said their children were not real Muslims and the applicant had brought shame upon their family. The applicant’s husband refused to take calls from [Brother A] and [Brother B] some years ago, as they became increasingly threatening and aggressive.

17. I accept the evidence of the applicant’s husband that [Brother-in-law A] will not allow him back to live in the family home unless he divorces the applicant and if he returns to Pakistan without divorcing the applicant, his brother may seek to try and forcibly take the children to ensure they are raised as Sunni Muslims and may also seek to harm the applicant.

    Future risk of harm on return to Pakistan

18. In view of my findings above, I accept the applicant’s brothers [Brother A] and [Brother B] and her brother-in-law [Brother-in-law A] continue to be motivated to harm her. This is consistent with DFAT’s advice that once a threat of honour crimes is established, the victim remains at risk even if he or she relocates. DFAT further notes that in some cases, victims have been killed years after the initial transgression.[4]

    [4] DFAT DFAT Country Information Report: Pakistan 25 January 2022 at 3.96

19. Overall, DFAT assesses that women and girls in Pakistan face a high level of official discrimination and a high risk of societal discrimination and violence, particularly domestic violence, because of their sex.[5]

    [5] Ibid at 3.100

20. DFAT also reports that Shi’a in Pakistan face a moderate risk of sectarian violence and societal violence, although it notes the situation has improved considerably in recent years. Shi’as have been targeted by sectarian extremist groups who have attacked Shi’a individuals, places of worship, shrines and religious schools although the frequency of such attacks has declined since 2013.[6]

    [6] DFAT DFAT Country Information Report: Pakistan 25 January 2022 at 3.60-3.61

21. The DFAT advice is consistent with other reliable sources of country information. Human Rights Watch reports that women and girls in Pakistan continue to be subject to gender-based violence including honour killings and acid attacks, and traditional justice systems at times arrive at verdicts to carry out honour killings and mutilation. While the Anti-Honour Killing Act 2016 declared murders in the name of family honour a criminal offence, it has failed to prevent such crimes.[7]

    [7] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p. 520; ‘44 women killed in the name of ‘honour’ in Swat’, Pakistan Today, 19 October 2019; ‘Ending violence against women in Pakistan’, Asia and the Pacific Policy Society, 7 February 2018; ‘Honor’ Killings Continue in Pakistan Despite New Law’, Human Rights Watch, 25 September 2017; ‘Couple shot dead in suspected ‘honour killing’ in Lahore’, Geo TV, 5 June 2018; ‘Honour’ killings in Karachi shock Pakistan’s largest city’, The Guardian, 27 December 2017; ‘Two men killed for honour in Islamabad’, Express Tribune, 7 March 2017

22. State protection of women is ineffective. DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Other sources confirm that gender-based violence, including honour crime, is underreported and laws designed to protect women from violence are rarely enforced. While the Pakistani government has set up women’s shelters, these are over-crowded and under-resourced and in some cases those seeking protection have had their movements restricted, been pressured to return to their abusers or exploited into prostitution or trafficking.[8]

    [8] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, pp 36-37; see also ‘Over 5,000 women approach Darul Aman in KP during last 5 years’, Tribal News Network, 23 January 2021

23. It is not necessary of course for the applicant to establish she is at risk of an honour killing, rather the Tribunal is required to consider whether she is at real chance of serious harm. Section 91R(2) (as it was at the time of application) provides that the following are instances of serious harm: (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. I am satisfied that the applicant has experienced at least some of those instances of serious harm at the hands of her brothers in the past and that there is a real chance she will again if she is returned to Pakistan now or in the foreseeable future. Given my findings above I am also satisfied there is a real chance the applicant will be subjected to serious harm from her brother in law [Brother-in-law A], even though that has not occurred in the past.

24. For these reasons, I find there to be a real chance the applicant will suffer serious harm from her own brothers [Brother A] and [Brother B] as well as her brother-in-law [Brother-in-law A] if she returns to Karachi or Lahore, now or in the foreseeable future.

25. The coercive, controlling and violent behaviour that the applicant has experienced from her brothers is properly characterised as family violence, a complex and pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. Family violence often takes place between intimate partners, but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. While family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[9]

    [9] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration,  University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)

26. In this case the gendered nature of the violence directed at the applicant by her brothers is clear. While the most recent trigger for their threats against her is her conversion from the Sunni to Shi’a branch of Islam, their controlling behaviour towards her long pre-dates that conversion and has its genesis in their beliefs about the role and status of women and their perceived right to dominate and control her because of her gender. As noted above, since childhood they have disrupted her education and sought to control her dress, activities and contacts outside the immediate family as well as trying to prevent her from entering into a marriage of her choice and moving to a western country with her husband.

27. While I accept that the extremist religious beliefs of her brothers likely played a role in forming their beliefs about the role and status of women, the country information indicates such attitudes and behaviours are prevalent throughout Pakistan and I am satisfied that the harm the applicant fears from her brothers is directed at her for the essential and significant reason of her gender and her membership of the particular social group ‘women in Pakistan’.  I consider that the group of ‘women in Pakistan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. 

28. The harm the applicant fears from her brother-in-law [Brother-in-law A] is more difficult to characterise. She does not suggest that he was violent or abusive towards her when she was living in his household after her marriage and prior to her travel to Australia, although it is clear that her residence in that household was at his discretion. It was only after her religious conversion that he became angry and cut off financial support to the applicant and her husband. Even now it appears he is prepared to have the applicants back in the household if the applicant renounces her Shi’a faith and the children are raised in the Sunni faith. These things may be indicative that the essential and significant reason for the harm he poses to the applicant is her Shi’a religion. Nonetheless it appears that [Brother-in-law A’s] primary concern is save the family’s honour from a woman whom he considers has brought shame upon them and in order to further that goal he will exclude the applicant from the household without any means of financial support and separate her from her husband and young children. In all the circumstances I consider that the harm the applicant fears from [Brother-in-law A] is directed at her for the combined reasons of her gender and her Shi’a religion.  

29. For these reasons I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct and will be directed at her for the essential and significant reasons of her Shi’a religion and her membership of the particular social group ‘women in Pakistan’.  I consider that the group of ‘women in Pakistan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. 

30. In view of DFAT’s advice that victims of honour crimes remain at risk over time and even if they relocate, I am not satisfied there is a safe place of relocation for the applicant. Given DFAT’s assessment that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence I find that the state of Pakistan cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

31. It follows that the applicant faces a real chance of persecution if she returns to Pakistan, now or in the reasonably foreseeable future.

    CONCLUSIONS

32. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

33. No claims for protection have been made in respect of the other applicants and the Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are each members of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

34. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Alison Murphy
    Member