2007159 (Refugee)

2007159 (Refugee) [2023] AATA 2420 (2 May 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007159
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Katsambanis
DATE OF DECISION:  2 May 2023
DATE CORRIGENDUM
SIGNED:1 August 2023
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

In paragraph 11 of the Decision, the reference to Malaysia in the context of the country of reference should read Pakistan
Peter Katsambanis
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007159

COUNTRY OF REFERENCE: Pakistan
MEMBER:Peter Katsambanis
DATE:2 May 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2023 at 1:56pm
CATCHWORDS
REFUFEE – protection visa – Pakistan – Federal Circuit Court remittal – particular social group – love marriage – marriage without family approval – family connections to security forces – fear of honour killing – fear of kidnapping – forced divorce – fear of acid attacks – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 April 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is [an age]-year-old child and claims to be a citizen of Pakistan, applied for the visa on 21 September 2015. On 29 April 2016, the delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The Tribunal, differently constituted, affirmed the delegate’s decision on 23 November 2017. An application for judicial review of that decision was dismissed by a judge of the Federal Circuit Court [in] November 2018. However, the decision was set aside by the Federal Court [in] March 2020[1]. The matter is now before the Tribunal pursuant to an order of the Court.
[1] [Source deleted.]
As the applicant is a minor, the applicant’s father, [named], appeared before the Tribunal on 27 March 2023 to give evidence and present arguments in his capacity as the applicant’s legal guardian and representative in this matter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this case are whether there is a real chance that if the applicant returns to Pakistan she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
In her protection visa application form it was stated that the applicant was born on [date] in Perth, Western Australian. Her citizenship was listed as Pakistani on the basis of her parents’ Pakistani citizenship. A copy of her Western Australian birth certificate was provided to the Department.
The applicant’s ethnicity was stated as Islamic, and her religion was stated as Sunni Muslim. She had never travelled outside Australia since her birth.
It was claimed that if the applicant was returned to Pakistan there was a strong fear that she would face extreme levels of threats. Her uncles, [Uncle A] and [Uncle B], may take her parents away from her which would leave her life full of hardships at an early age.
It was claimed that she would face extreme hardships because her parents fell in love and married against the will of the two uncles. The hardships would include being separated from one or both of her parents as the uncles had threatened the parents that they would face the consequences of their choice of marriage. The uncles, who were her mother’s brothers, have strong support from their cousins and their own uncle, because they all had wanted to arrange the mother’s marriage to her cousin.
It was feared that the authorities could not protect the applicant from harm because these cousins and uncles who were supporting her uncles against her parents and herself had deep connections in the government authorities and army of Pakistan. One of the mother’s cousins was a [ranked officer] in the Pakistan army and a couple of cousins were in the [police force]. It was therefore feared that these people could use the authorities against the applicant.
The applicant could not relocate to another part of the country because these relatives could track the applicant and her family by using the government authorities.
At an interview with a delegate of the Minister on 14 April 2016, the delegate’s decision record notes that the applicant’s father explained that he met his wife in 2004 and they courted from 2006. They married without the approval of uncles from his wife’s side of the family, who had arranged for the wife to marry her cousin. They knew of the relationship between the applicant’s parents but were against a marriage because the applicant’s father was from another tribe. The wedding went ahead without their knowledge, and they were unable to prevent it. The couple endured threats while they remained living in Pakistan.
The delegate’s decision record states that the father claimed that the mother’s uncle, the applicant’s great uncle, still wants to harm the parents because the marriage challenged his ego. Accordingly, there is a risk that one or both of the parents of the applicant may be harmed by the mother’s relatives. The father fears he may be harmed by his in-laws to force a divorce, which he refused to do for the safety of his children.
It was claimed that the mother’s uncle is well connected to Pakistani authorities and may use the police to force a divorce, as he has done in the past.
It was feared by the father that the applicant may be kidnapped by her maternal relatives in revenge against her parents’ marriage, and extended relatives have passed on information that the family are still at risk. The parents are also at risk of an honour killing.
It was claimed at the interview that the original cousin to whom the mother of the applicant was promised in marriage had now married another person. However, the maternal uncles and cousins now wanted to marry the mother to a younger unmarried brother of the original cousin.
It was further claimed that the uncles would focus their efforts on separating the parents if the family returned to Pakistan. The applicant’s maternal grandmother had been a calming influence in the conflict, but she had now passed away and the maternal uncle would now put more pressure on the parents to divorce.
The Department was provided with an article dated 28 May 2014 evidencing an honour killing committed in Pakistan.
At the interview, the decision record states that the father was presented with country information that indicated the majority of honour killings were perpetrated by the wife’s parents either before or just after a marriage but in his own case his in-laws had approved the marriage and almost a decade had passed since the marriage took place. In response, the decision record indicates that the father claimed that his sister-in-law had told him that rumours abounded that the mother’s uncle and cousins were now even more serious than in the past. This was because the uncle had his ego bruised and because the uncle was very close to the jilted cousin who had been denied the opportunity to marry the mother.
The decision record also notes that the father of the applicant claimed that he knew his wife would be able to hide at the home of his own parents and at the home of his uncle after he had departed for Australia and before she came to Australia around 18 months later. He also claimed that a divorce could not be arranged without his consent whilst he was in Australia and his wife was still in Pakistan.
The father indicated that if something happened to the couple, he did not believe that his wife’s family would have any desire to care for the children but confirmed that the paternal grandparents (his own parents) could care for them.
The decision record indicates that the father clearly stated that neither he nor his wife had any desire to divorce. He also stated that although his wife had remained safely in Pakistan for 18 months after he had departed for Australia, he feared his in-laws would use their contacts to locate them on return and that they would be more motivated to do so.
The delegate refused to grant the applicant a protection visa on 29 April 2016.
Application for Review and previous Tribunal hearing
The applicant applied to the Tribunal for a review of the delegate’s decision on 10 May 2016.
The Tribunal, differently constituted, held two hearings in this matter – on 19 April 2017 and on 7 June 2017. Both parents of the applicant gave witness evidence to the Tribunal at these hearings. The witness evidence of the parents at these hearings is summarised in that decision record and relevant parts are further summarised below.
The applicant’s mother stated that she commenced a relationship with the applicant’s father in January 2006 and they married [in] March 2007. She claimed that she was ‘a little bit related’ to her husband and that she had known her husband for around five years prior to their marriage. Her big brother, her father and her uncle were not happy with this marriage because her uncle and brother wanted her to marry one of her cousins, who was named ‘[name]’. Instead, she chose to marry the applicant’s father in a ‘love’ marriage. The couple had a son, [Son A], who was born in Pakistan on [date].
The mother claimed that she had remained in Pakistan after her husband first came to Australia in 2008 and had lived with her husband’s parents in Gujrat, Punjab province until she came to Australia with her son in 2010. The couple had another son, [Son B], whilst they were living in [Australia]. Their daughter, the applicant, was born in Perth.
The mother claimed that she was still in contact with her [sister], [Sister A], who was living in Pakistan and she was also in contact with her husband’s family. Her mother had passed away about three years ago, but her father was still alive. [This] sister had told her that it was not safe to return to Pakistan and that after the applicant was born her sister had told her that the safety of her husband was under threat, including possible threats to kill him. She feared that her brother, [Uncle A], would kill her husband and also the applicant. She added that [Uncle A] had recently told [Sister A] that this was his intention. She feared that if the family returned to Pakistan, her own family would force her and her husband to separate.
The mother claimed that she would not be able to look after her children, including the applicant, if she was forced to separate from her husband in Pakistan. She feared that there was nowhere safe for her in Pakistan to avoid harm from her uncle and her brother, but she felt safe in Perth. She did not believe the authorities in Pakistan could protect her and described her uncle and brother as being ‘hand in hand’ with the Pakistan police force.
The mother stated that she managed to live safely in Pakistan after her husband departed for Australia because she was living with her husband’s family in Gujrat. When her own family members would visit Gujrat, she would be warned in advance by her sister that they would come there to argue and disrupt the marriage. She claimed that she had been forced to call the police twice for protection from her brother and her uncle. She stated that her own family lived in Sarghoda, which was also in Punjab province, but was around three hours’ drive from Gujrat. She feared that if she returned to Pakistan, her sister would inform her uncle and her brother of her return.
The mother stated that her uncle was the head of her family and that he now wanted the applicant to marry her own cousin. Her own father and brothers were scared of the uncle. She feared that if the family returned to Pakistan, her family members would harm her and her husband and then they could do anything they wanted to the applicant. She claimed that her uncle and brother wanted to torture the applicant because they do not respect girls in Pakistan. In response to questions about whether the family could relocate to Lahore or Islamabad to avoid harm, she claimed that her uncle and brother would go to every city in Pakistan to seek out the family if they returned. She had cousins who were in the police department, and they would assist the family members to locate her, particularly if her family members paid them bribes.
The mother feared that the applicant was also in danger and her family members could kill the applicant. She wanted the applicant to become educated but feared that without her husband she would not be able to protect her children.
The applicant’s father provided witness evidence that he and his wife were in a ‘love marriage’ which was unusual in Pakistan and referenced Australian media reports about honour killings in Pakistan. He claimed that his wife’s family were against the couple’s marriage from the very beginning, in particular her uncle [named] and her brother [Uncle A]. The uncle had wanted his wife to marry her direct cousin and the couple had received threats whilst they were still living in Pakistan.
The father confirmed he arrived in Australia in 2008, with his wife and his son arriving in 2010. He claimed that his children, including the applicant, did not have any contact with his wife’s family back in Pakistan. His wife had some communication with her [Sister A], as well as ‘a little bit’ of contact with her other [siblings].
The father explained that he feared that his wife’s brother would take revenge for his sister not accepting her own forced marriage by forcing the applicant to marry his own son, who is the applicant’s direct cousin. He confirmed that the conflict relates to his wife marrying somebody that her family did not approve. However, the decision record notes that the witness did not offer any explanation as to why his wife’s brother would wish for his own son to marry the applicant.
The decision record notes that the father feared his daughter, the applicant, would have acid thrown in her face if she returned to Pakistan. He singled out his wife’s brother as being prepared to continue to fight, not to kill the applicant, but to instead force her to marry his own son.
The father highlighted that his own family supported the applicant and her family, and his mother wished that they would visit them in Pakistan, but he would not go because of his fears. He claimed that relocation was a difficult and dangerous process in Pakistan, particularly with respect to suicide bombings. He feared that people could be located and contacted through the police in Pakistan, who are easy to bribe. He reiterated that his wife’s uncle was a really influential person and is ‘politically really strong’. He claimed that his wife’s brother and uncle had started receiving payments from the police.
The father confirmed that he had lived in university hostel accommodation in Lahore [between specified years] when he was studying at university. He claimed that there were safe and unsafe areas in Lahore but added that relocating to Lahore or Karachi would be a tough situation for himself and his family.
The father confirmed that the threats to his family had been indirectly communicated to them through his wife’s sister, [Sister A]. He claimed that the family were constantly in different locations after their marriage before they came to Australia.
The decision record indicates that the father claimed his own uncle had a calming influence on the conflict between the two families after he married his wife in 2007 and before the birth of their first son. He claimed that his wife did not travel with him to Australia because he needed to arrange accommodation in [Australia] upon his arrival and he needed to find the funds to pay for tickets for his wife and son.

The father confirmed that the family’s existing concerns were mainly based on information provided by his wife’s sister, [Sister A]. He believed that what the sister said made sense and that he did not feel she was exaggerating the situation. When asked if this sister had regular communication with his wife’s uncle and [one] brother, the decision record notes that the father responded that [Sister A] ‘gives them space and minds her own business’. He confirmed that this sister lived in the same general area of Pakistan as the uncle and the brother.
The father stated that he and his wife feared, that if they return to Pakistan, they would be forced to give up the applicant for marriage to the son of his wife’s brother. He claimed that no laws would stop this forced marriage because parties could be very young in such forced marriages. They could even be under the age of 16.
The father claimed that the wife’s uncle had some influence over Pakistan police, the uncle did not get charged for any tolls and his toll expenses were ‘managed’ by the police. He stated that Lahore was only 195 km away from where the uncle and the brother lived. His wife’s family were close to a [ranked officer] who worked in the Pakistan army and there were also two nephews working within the [police force]. He stated that he would not find safety in any area of Pakistan. However, he confirmed that his parents were still alive and that he and his wife had lived with them for some months prior to the father coming to Australia.
When asked to confirm what he considered the risks to the applicant would be if she was forced to return to Pakistan, the decision record notes that the father stated that his greatest fears were that she would be forcefully married or that she would be taken away by the brother and uncle. He also believed that return to Pakistan would put the families lives at risk through kidnapping and he also feared forced divorce from his wife.
The Tribunal, differently constituted, affirmed the delegate’s decision on 23 November 2017[2].
[2] Administrative Appeals Tribunal Case Number 1606635, 23 November 2017.
Decision of Federal Court
In the Federal Court judgment dated [in] March 2020, [Judge A] found that the Tribunal, as previously constituted, had materially erred by not considering whether there was a real risk that the applicant would suffer significant harm given that the previously constituted Tribunal had previously found that there was a substantial risk that the applicant would be forcibly married if she returned to Pakistan[3].
[3] [Source deleted.].
In relation to the consequences of forced marriage for the purposes of s 36(2A), [Judge A] made the following comments:
[Details deleted.]
The Tribunal has read and considered this Court decision prior to making its decision on this matter.
Tribunal Hearing
The applicant did not attend the hearing. The applicant’s parents both attended the hearing as did her [sibling]. At the commencement of the hearing, the parents were asked whether they both intended to give evidence at the hearing. However, the parents clearly outlined that only the applicant’s father would give evidence at the hearing. On this basis, the mother and the [sibling] remained in the hearing room as observers throughout the hearing.
The applicant’s father [named] confirmed that he was the legal guardian of the applicant and would give witness evidence on behalf of the applicant in this capacity. He confirmed that the applicant had been born in Australia, had never departed Australia and had therefore never been to Pakistan.
The father confirmed that he had been born and grew up in Gujrat, Punjab, Pakistan. His parents are still living in this area. They are aged in their [age range] and now retired. They are currently living in their own home in Gujrat. They had previously worked as farmers on their own land in Gujrat, where they grew [crops]. In the past they had also grown [another crop] until it became uneconomic for them to do so. They currently run [animals] on the property to help maintain the land.
The father explained that his own father had been receiving a form of [pension] from [Country 1] since the 1980s and continued to receive this pension to the present day. His father had been working in [Country 1] in the 1980s and had been injured in a workplace accident there. He returned to Pakistan before the applicant’s father was born in [year] and has been in receipt of this pension from [Country 1] ever since.
The applicant’s father [has specified] siblings. His [siblings] are all adults and are all married. [Some] live with their [spouses] in Punjab province. [Another] is living in Gujrat, the family’s hometown. The applicant’s father remains in contact with his family in Pakistan on a very regular basis.
The father claimed he studied in Lahore Pakistan [between specified years] at the [named] University. He studied [subject] at this college but did not complete his studies because he received credit for the units studied to commence his studies in Australia. He explained that Lahore was around 120 km, or more than two hours by road, from his hometown. While studying, he lived at a hostel near the college campus. His tuition and living expenses for his studies in Pakistan were funded by his father. He confirmed that he did not engage in any work either whilst studying at university or at any time whilst living in Pakistan before he came to Australia.
The father explained that after he completed his studies he stayed in Lahore until his visa application to come to Australia had been processed. During this time, he studied for, and sat, his IELTS (English language) examinations. When asked if he would return to Gujrat regularly during this time, he responded ‘not that much’.
The father stated that he married his wife [in] March 2007. He stated that his wife was from the Sarghoda area, which was around 200 km from his own hometown. His wife and her parents lived in [an identified village] in that area. His wife’s mother had passed away around five or six years ago but her father continued to live in this area. His wife has [specified family members]. All of them live with their families in the Punjab area, however, one brother is currently working in [Country 2].
The father was asked when he first met his wife. He responded that they were part of the same family and had known each other for a long time. He explained that his wife was part of the [named] family, whilst he was part of the [named] family. With the assistance of his wife, who was sitting in the back of the room, the father explained [their family connection]. Therefore, the couple are [related].
When asked if the couple had ever dated or courted prior to their marriage, the father responded that you don’t do that in Pakistan. He explained that the couple would meet at family gatherings, and they would talk for a bit, however it was all hidden from other members of the family. When asked how the couple ended up getting married, the father stated that he spoke to his own mother, and she then organised the marriage. He agreed that the marriage had been organised or arranged between members of the two families. He indicated that both his parents and his wife’s parents were supportive of this marriage.
The father was asked where the couple’s wedding had taken place. He initially sought to speak to his wife, who was sitting at the back of the room. He eventually stated that the marriage had taken place in his wife’s hometown and confirmed that the parents of both himself and his wife attended the wedding. When asked if the wedding had been a big wedding, he responded that it was reasonably big with somewhere between 200 and 300 people in attendance. No alcohol was served, due to religious and traditional restrictions, but there was a big feast. He confirmed that people from both sides of the family were in attendance. He claimed that he did not receive any substantial dowry from his wife’s family but a token payment of [amount] Pakistani rupees (less than AU$[amount]) was made to honour traditional practices.
The father claimed that he and his wife lived together as a couple in his hometown of Gujrat after they were married. When it was pointed out to the father that earlier in the hearing he had claimed that he had mainly lived in Lahore after he stopped studying and until he came to Australia, he claimed that whilst he lived in Lahore he would return to Gujrat on a regular basis. He added that his wife lived in two different places in Gujrat, firstly with his father in the family home and then at his uncle’s home. When asked why his wife had moved houses in Gujrat, the father responded ‘multiple reasons’, but did not elaborate on what these multiple reasons were.
The father claimed that his first son was born in Gujrat whilst the father was still living in Pakistan. He and his wife never worked in Pakistan. The young family was supported by his father. After he came to Australia, he would send as much money as he could back to Pakistan to support his wife and child, however they still relied on support from his own father.
The father was asked what problems his family members had experienced in Pakistan. He responded that his wife had problems because you can date in Pakistan as long as you are not caught but if someone finds out you then have problems. He added that his wife’s brother was not happy that they were together, especially when he found out that they were dating.
It was pointed out to the father that earlier in the hearing he had provided evidence that both his family and his wife’s family had been happy that they were together, had agreed to the wedding and had attended a large celebration in honour of that wedding, which would indicate that neither family had problems with the marriage of the couple. In response, the father stated that if the family went back to Pakistan, they would want something in return.
When asked to elaborate on the problems his wife had experienced in the past in Pakistan, the father stated that she had a lot of issues. He claimed she had experienced a lot of tough times and had experienced abusive behaviour from her brother and her uncle because of the marriage.
When asked why these people cared that the couple had married, the father claimed that it was their tribe, and they did not want the wife to marry him. They did not want their daughter to date him in hidden circumstances because it was disrespectful to the tribe.
It was pointed out to the father that, based on his own evidence, his wife’s family had allowed her to marry him. On this basis, he was asked why any hidden interaction by the couple before the wedding would be a continuing problem. He responded that they found out afterwards and added that even a few weeks before the marriage, his wife’s brother was not happy and showed his displeasure by refusing to go back home. He claimed that there may be consequences after this marriage and added that there were too many people at the wedding for the brother to cause any problems at that time.
The father was asked why his wife’s brother would have any ongoing issues with this marriage. He responded that his wife was her brother’s sister and the brother’s pride had been wounded when he found out that the couple had been dating. When asked why the brother did not attempt to stop the marriage if he was aggrieved prior to the wedding taking place, the father responded that both sets of parents had agreed to the wedding and the parents had more hold over the situation than the brother.
The applicant’s father was asked if his wife had experienced any problems in Pakistan after the father himself had departed from Pakistan to come to Australia. He responded that his wife had been threatened and there was a scar on her hand. When asked to provide further information about these claims, the father stated that his wife had been threatened by her brother who was supported by her uncle. He claimed that this uncle put pressure on the brother to get his pride back. He added that this was why his wife had to move around between houses in Gujrat. He also claimed his wife had faced physical abuse during this period of time.
When asked who had caused this physical abuse to his wife, the father responded that it was his wife’s brother. When asked where this incident had occurred, the father responded that it was at his uncle’s house. The father was then asked when this incident occurred. He responded that it was after the marriage of the couple sometime in [year] before he had left Pakistan. He added that he was living in Lahore at the time.
When asked how his wife had been physically abused during this incident, the father claimed that she had been pushed around because they were trying to forcibly take her back. He claimed that the police were called but his wife’s uncle had a relationship with the police and the army, so they did not take any action.
The father was asked who had called the police during or after this incident. He responded that it was either his uncle or his dad and added that he was not there. He then stated that it was more likely that it was his uncle because he lived close to the police station.
The father agreed that his wife was pregnant at the time of the alleged incident. He also agreed with the Tribunal’s assessment that a person in his position, with a pregnant wife who had allegedly been assaulted by family members, would want to obtain specific details about any serious incident that had occurred to his wife. However, when asked why he had been uncertain as to whether his uncle or his father had called the police in relation to this incident, the father did not offer a response.
The father was asked how the scar on his wife’s hand was caused. He responded that it was caused by his wife being pushed around and landing on a table. He claimed that either a piece of glass or a piece of wood had entered her hand from the corner of the table. When asked why he was not certain as to whether it was glass or wood that had caused the scar on his wife’s hand, the father claimed that his wife had fallen on the corner of the table. He added that the table was made of both glass and wood. On the basis of this response, the Tribunal asked the father if he was changing his evidence during the course of the hearing to cover up the failings in his evidence that were pointed out to him by the Tribunal. In response he stated, ‘I can’t comment on that’.
It was pointed out to the father that when the Tribunal asked him about any problems that his wife had experienced after he had left Pakistan, he recited an incident of a physical attack from his wife’s brother but then claimed that the attack had happened before the father had left Pakistan. On the basis of this inconsistent evidence about the timing of the physical attack, the father was asked why the Tribunal should accept that he was being a witness of truth in relation to this matter. In response, the father stated, ‘I can’t comment on that’.
The father confirmed that he had never returned to Pakistan after he first came to Australia in 2008. He also claimed that none of his family members in Australia had ever gone to Pakistan after the family arrived in Australia. His wife and eldest child came to Australia in September 2010 as family members on his student visa. [The other] children had been born after the couple arrived in Australia, including the applicant. The first child who had been born in Australia was now over the age of 10 years and had obtained his Australian citizenship.
The father claimed that he first came to Australia to study [a named course] but did not finish this course. He claimed that on the basis of the credits he had obtained during his studies in Australia he had been issued with either [of two lesser qualifications] by this institution. He stated that he was last enrolled to study in Australia in 2011.
When asked who had paid for him to study in Australia, the father initially responded that he had done so himself. When it was pointed out to him that based on his own evidence he had never worked in Pakistan before he came to Australia, which would make it difficult if not impossible for him to be able to fund his studies in Australia, the father stated that his father had paid for his airfare to Australia and had also paid the fees for his first semester of study. He was then expected to work in Australia, to use his earnings to sustain himself and to also pay for his ongoing tuition fees as well as sending money back to Pakistan to support his wife and child whilst they were still living there.
The father claimed that the family moved to Perth in 2012 because Perth was considered a regional area at the time for migration purposes, so the family believed that they would have a better chance of obtaining permanent residency if they moved to Perth. He indicated that the family had no relatives in Australia but added that his wife had recently discovered some distant cousins who were living in Sydney.
The father was directly asked again if any of his family members had travelled outside Australia at any time since the family arrived in Australia. He emphatically responded that no family members had travelled outside Australia. However, when the Tribunal referred to Department movement records that suggested his Australian citizen son had travelled outside Australia in 2022, the father agreed that these movement records were correct. He then stated that his son had travelled outside Australia since the family had arrived in Australia and indicated that the son had gone to Pakistan with a family friend who also came from the father’s hometown. The son spent around three weeks in Pakistan, visited the hometowns of both of his parents and met with various family members of both parents.
The father claimed that the applicant was currently studying in [grade] at the [named school] in [Perth]. The family lived in the suburb [named] and the father was employed on a full-time basis at a [business]. The wife was not working. The father indicated that the applicant and the whole family were well-settled in Australia. Apart from attending school, the applicant liked to go to the park and meet with her school friends and their families. Although his son played soccer, the applicant did not engage in any organised activities outside school.
The father indicated that the applicant had not experienced any problems in Australia. He added that his wife had been sick some time ago but was well now. He claimed that his daughter, the applicant, was a Pakistani citizen and her birth had been recorded in his wife’s passport by Pakistani authorities in Australia.
The father stated that he had not given a lot of thought to any return to Pakistan but indicated that if the family had to return, they would probably go to his father’s house in Gujrat. He added that it would be a last resort because he did not want to return to Pakistan.
The father was asked to outline in his own words why he believed his daughter, the applicant was entitled to protection Australia. He responded that he had provided enough evidence in his written statements and added that she was entitled to protection because she would face significant harm.
It was pointed out to the father that his written statement had been provided some years previously and he was again asked to articulate in his own words why he believed the applicant was entitled to protection in Australia. He responded that the applicant would face a lot of problems if she went back to Pakistan. She had lived and been raised in Australia, so she was used to the Australian way of life. He added that the applicant could not speak the Urdu language that was commonly spoken in Pakistan, and again stated that she was well-settled in Australia.
The father was asked to outline to the Tribunal what problems he believed the applicant would face if she returned to Pakistan now or in the reasonably foreseeable future. He responded that the applicant would face a lot of harm if she went to Pakistan. When asked to outline what this harm might be, the father stated that it was hard to explain because, as her father and her guardian, he could not anticipate what might happen to her.

When again asked to outline any particular fears he had about the applicant returning to Pakistan, the father stated that he feared that she might be forcibly married, persecuted or physically harmed. When asked who he feared would do this to the applicant, the father responded that it was his wife’s brother and uncles that he feared because they were unhappy with the marriage of the father and mother of the applicant.
When it was pointed out to the father that based on country information it appeared that the parents of any bride would need to agree to a forced marriage before it could take place, he denied that this was the case in Pakistan. He claimed that his daughter could be forced into a marriage against her will and the will of her parents because the family pride of his wife’s family had been hurt by the marriage between the applicant’s mother and father. He claimed that his wife’s family would want to take revenge for that.
When asked why he, as the applicant’s father, could not protect her from any forced marriage, the father responded that there were two different types of systems between Australia and Pakistan. He claimed that it was hard to approach the police in Pakistan without having links to the police and added that his wife’s family were the ones who had these links.
The father confirmed his claims that his wife’s family were well connected with local police and the army in Pakistan. On this basis, he was asked why the family had been unable to stop the wedding if they were as powerful as he claimed they were. He responded that they tried. On the basis of this answer that the wife’s family had tried to stop the marriage from taking place, it was pointed out to the father that this would indicate that they did not have the power he claimed they had given that they had failed to stop the marriage despite their attempts to do so. He responded that the family did not have the ability to do that back then, but both his parents and his wife’s parents were now older and weaker.
Even if his wife’s family did have some power over local authorities in their own local area, the father was asked how they would be able to exert power over local authorities in his own local area of Gujrat. In response, the father stated that he could not comment on that because he hadn’t been back to Pakistan for 13 years or so.
The father was asked if the applicant would have any other problems on return to Pakistan apart from the issues that he had articulated relating to some members of his wife’s family not supporting his marriage to his wife and the associated fears that they may want to harm the applicant or force her into a forced marriage. He responded that in Pakistan the applicant would have a lack of social connection because she was used to the system in Australia. He also added that the applicant did not speak the Urdu language.
When it was pointed out to the father that country information indicated that English was both widely spoken and was one of the official languages of Pakistan, he denied that this was the case.
When asked if the applicant had any issue or barrier that would prevent her from learning the Urdu language if she returned to Pakistan, the father responded, ‘I can’t comment’.

100. Despite initially claiming to the Tribunal that the applicant did not speak the Urdu language, the father eventually confirmed that the family did speak Urdu at home in Australia and that the applicant did have some understanding of this language, albeit with a limited ability to speak the language. The father also agreed with the Tribunal that there would be no impediment to the applicant, as [an age]-year-old child in [grade] at school, from quickly learning the Urdu language if she started attending school in Pakistan.
101. Apart from the issues that he had outlined to the Tribunal, the father was asked if there were any other concerns that he had about the applicant returning to Pakistan. He responded that there were no other issues and added that he had nothing else he wanted to tell the Tribunal.
102. The Tribunal pointed out to the father that based on the evidence he had provided at this hearing and based on the marriage certificate he had previously provided to the Department it appeared that he and his wife had been married in his wife’s hometown, both sets of parents had agreed to and attended the wedding, the wedding had been a traditional Pakistani wedding and a large celebratory feast attended by hundreds of people was held at the conclusion of the wedding. On this basis, it was pointed out to the father that these details may strongly indicate that his wife’s family was supportive of her marriage to him, and that no members of her family were opposed to this marriage in any way. When asked to comment, the father responded that he had ‘no comment’. When again asked if he wished to comment on these concerns raised with the Tribunal, that may potentially impact on the applicant’s claims for protection, the father confirmed that he had no comment that he wished to make on this issue.
103. The Tribunal pointed out to the father that based on his own evidence over time he and his wife had lived together in Pakistan in his hometown for over a year after they had been married and his wife had continued to live in his hometown in Pakistan with members of his own family for another two years after he had departed for Australia. If anyone, including any family members of his wife, had wanted to cause her any harm whatsoever they had the opportunity to do so over this period of time, and in particular in the period when the father himself was not living in Pakistan. In response, the father stated, ‘I can’t comment on that’.
104. It was pointed out to the father that the three-year period that his wife had managed to live in Pakistan after the wedding may indicate that his wife’s family members had no adverse interest whatsoever in the couple’s relationship for any reason. In response, the father stated that he had no comment he wished to make.
105. The Tribunal pointed out to the father that if the Tribunal made findings that his wife’s family had no adverse interest in the marriage between him and his wife, the Tribunal may also find that his wife’s family would have no ongoing adverse interest in his daughter, the applicant, for any reason if she returned to Pakistan. In response the father stated, ‘no comment’.
106. The father confirmed that it was his intention and his wife’s intention that the couple would stay married. When asked if anyone could force the couple to divorce against their will, he responded ‘not in Australia’. When asked if anyone could force the couple to divorce against their will in Pakistan, the father agreed that they could not do so.
107. It was pointed out to the father that there had been claims made in the past on behalf of the applicant that if she returned to Pakistan, she would be subject to random attacks including acid attacks. He was asked if he still held these fears and he confirmed that he did so. However, when asked who would harm the applicant in this way, the father stated that he could not comment on that because he did not know yet.
108. It was pointed out to the father that claims had been made to the previous Tribunal on behalf of the applicant that if she returned to Pakistan, she may be forced to marry the son of his wife’s brother. However, this claim had not been mentioned by the father in his evidence to the Tribunal at this hearing. He had made claims that he feared that the applicant may be forcibly married by aggrieved members of his wife’s family in a more general sense, but he had made no mention of any fear that she would be forcibly married to her cousin, who was the son of his wife’s brother. On the basis that this claim had not been mentioned at the hearing, the father was asked why the Tribunal should accept that it is true. In response, the father stated that he mentioned the fear of forced marriage.
109. When it was pointed out to the father that the direct claim about forced marriage to the son of his wife’s brother had not been raised at the hearing in any way until it was raised by the Tribunal, he responded that he had raised the claim to some extent but not in full detail. Based on this response, the Tribunal pointed out to the father that he had not mentioned this particular issue in any detail whatsoever which may indicate that he did not genuinely hold this fear on behalf of the applicant. In response, the father stated that he had no comment he wished to make.
110. It was pointed out to the father that country information from the Department of Foreign Affairs and Trade indicated that Pakistan had passed laws to outlaw forced marriage and that, despite the existence of ingrained cultural practices, the authorities in Pakistan were having some success in stopping forced marriages. Based on this information and based on the fact that the applicant’s parents clearly did not want her to be forcibly married, the Tribunal stated to the father that it appeared that the applicant would face a negligible risk, or no risk at all, of forced marriage if she returned to Pakistan. In response, the father stated that the parents did not have to agree to a forced marriage and other parties could get them married. When asked who these other parties may be, the father stated that it would be the person who took the child if they had enough resources to do so.
111. The father was asked why, in such circumstances, he or his daughter could not seek the assistance of the authorities given that the country information clearly indicated that the authorities were prepared to address these issues that were an ongoing blight on Pakistan’s international reputation. The father responded that the authorities intervened to some extent but if the people were powerful enough the authorities could not stop them.
112. It was pointed out to the father that his claim appeared to be a merely speculative claim that some random person in the future may forcibly marry his daughter against her will. The father agreed that this was the case but added that it was not simply a random fear because some of the applicant’s family members could do this to her as well.
FINDINGS AND REASONS
113. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
114. There is no issue as to identity. The applicant is [an age]-year-old child born in Australia. Her parents have produced her birth certificate to verify her identity.
115. In relation to the applicant’s nationality, her parents were not Australian citizens or permanent residents at her birth. Therefore, the applicant is not an Australian citizen. Her parents applied for the applicant’s birth to be registered with Pakistani authorities in Australia and have produced a copy of the mother’s Pakistani passport where the applicant is registered as being the child of the mother. At the most recent Tribunal hearing, the applicant’s father acknowledged that the applicant was a national of Pakistan and that this status had been affirmed by Pakistani authorities in Australia when they registered the applicant’s birth on the passport of her mother. Accordingly, on the evidence before it, the Tribunal finds that the applicant is a national of Pakistan and has assessed her claims accordingly.
116. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
117. The applicant was born in Australia, has never travelled outside Australia since her birth and has never lived in Pakistan. Accordingly, given that she has never lived in Pakistan, the Tribunal finds that the applicant has never suffered any harm in the past in Pakistan.
118. As the applicant has never lived in Pakistan, the Tribunal has used the term ‘if she went to Pakistan’ rather than the term ‘if she returned to Pakistan’ when considering the applicant’s claims for protection because the notion of returning to place someone has never been to is a logical absurdity.
119. The Tribunal also accepts that one brother of the applicant has been to Pakistan for a tourist visit since the family first came to Australia. However, given the applicant’s claims for protection are based on her own individual characteristics including her gender (such as claims about the fear of forced marriage), the Tribunal does not consider that the brother’s visit to Pakistan is directly relevant to whether the applicant can go to Pakistan in her own personal circumstances.
120. As the applicant is an [age]-year-old child, she has not made direct claims and has not appeared before the Tribunal in person. Her parents have made the visa application on her behalf and have given witness evidence on her behalf to the Department and to the previously constituted Tribunal. The applicant’s father appeared before the Tribunal, as currently constituted, to provide witness evidence on the applicant’s behalf.
121. Over time, it has been claimed that if the applicant went to her country of nationality, being Pakistan, she would face harm, including forced marriage and other physical harm, from aggrieved family members of her mother who were not supportive of the ‘love marriage’ of the applicant’s parents. Claims have also been made that the applicant may face harm in Pakistan because of the risk of forced marriage more generally and because she is well-adjusted in Australia, has not lived in Pakistan and does not speak the Urdu language.
122. Apart from the direct verbal and written evidence of her parents and a media article from 2014 about an honour killing in Pakistan, no other documents, witness statements or other evidence has been provided over time in support of the applicant’s claims.
123. Both parents of the applicant have claimed over time that they were married in what they have described as a ‘love marriage’ in Pakistan. They have further claimed that some members of the applicant’s mother’s family, including her uncle and one of her brothers did not support this marriage because they had wished that the mother would be married to another relative. Both parents have claimed that these aggrieved family members have tried to break up the couple over time, have physically harmed the mother of the applicant and have an ongoing interest in getting the couple divorced. Both parents have also claimed that these aggrieved family members would harm the applicant and forcibly marry her in Pakistan, including a possible forced marriage to the son of the mother’s brother (the applicant’s cousin) because their ego and pride had been wounded by the marriage of the parents and in order to seek revenge for this marriage which they did not support.
124. However, at the hearing held by the Tribunal as currently constituted, the applicant’s father confirmed that he and his wife were related as [distant relatives]. The father confirmed that the couple grew up and lived some considerable distance from each other. They would see each other at some family gatherings and speak to each other whilst hiding their interactions from other family members. However, the father confirmed that the couple did not formally date or court in Pakistan because, as he explained, you do not do that in Pakistan. Instead, the father claimed that he expressed his interest in marrying his now-wife to his own mother, who then commenced the process to make the necessary arrangements between the two families so that the marriage took place. The applicant’s father also indicated that the couple married in his wife’s hometown in a traditional ceremony in the presence of both sets of parents and held a feast or wedding reception attended by around 200 or 300 people. A token traditional dowry was also paid by the bride’s family to the groom’s family.
125. As the Tribunal discussed with the applicant’s father at the hearing, these details about how the couple’s wedding was arranged and celebrated would strongly indicate that they were married in a traditional Pakistani wedding which was supported by both families and where no members of either family were concerned or aggrieved in any way about the marriage of the couple. When asked on two separate occasions by the Tribunal at the most recent hearing to directly comment on whether this was the case, the applicant’s father indicated on both occasions that he had no comment that he wished to make.
126. The Tribunal has considered the explanations offered at the most recent hearing by the applicant’s father where he stated that his wife’s brother and the other aggrieved relatives could not stop the wedding because there were too many people in attendance for them to cause problems and where he also suggested that at the time of this wedding his parents and the parents of his wife had more hold or control of the situation than his wife’s brother and the other aggrieved relatives. However, given the consistent claims over time by the applicant’s parents that the brother and other aggrieved family members felt so strongly about the situation and the impact the wedding had on their ego and pride, the Tribunal does not accept these explanations as plausible in the circumstances as they do not offer any explanation as to why the presence of many people at the wedding or the relative power balance of various parties at the time that the wedding took place would have precluded those people who felt so aggrieved at the marriage taking place from showing their displeasure and lack of support and at least making an attempt to stop or disrupt this marriage.
127. Both parents have claimed that after the couple married in March 2007, the applicant’s mother went to live with her husband’s family in their hometown of Gujrat. The husband was primarily living in Lahore at that time but would visit Gujrat to be with his wife. After the husband departed for Australia in 2008, the wife continued to live with her husband’s family in Gujrat until she came to Australia in September 2010.
128. At the hearing, the applicant’s father claimed that whilst his wife was living with his own family in Gujrat after the couple’s marriage, she was assaulted on one occasion by her brother who had come to forcibly take her back to her hometown. He also claimed that his wife suffered an injury to her hand in the course of this assault, that his own family members reported the assault to police but the police did not do much to assist the family, possibly because of the power and influence that the wife’s family members had over the authorities in Pakistan.
129. However, the father’s evidence at the hearing in relation to this claimed assault on his wife was vague, undetailed and in some aspects inconsistent. He first raised the issue of this assault as a direct response to a question asked directly of him by the Tribunal about any harm his wife may have suffered after he had left Pakistan to come to Australia and his wife continued to live in Pakistan with their infant son. However, when asked to provide a date on which the assault took place, the applicant’s father did not provide a date but indicated that it happened when he was still living in Pakistan rather than after his departure from Pakistan as he had first suggested. When asked by the Tribunal why he had raised this incident which happened when he was in Pakistan only when asked about things that may have happened to his wife after he had left Pakistan, the father did not provide a responsive answer but instead stated, ‘I can’t comment on that’.
130. The applicant’s father claimed that one of his family members reported this assault to the police, but the police did not do much about it. However, the father provided vague and inconsistent information about which family member reported the assault to the police. Initially he was unsure that it was either his father or his uncle. He then stated that it must have been his uncle and offered the further explanation that it was more likely to be his uncle because his uncle lived nearer to the police station. The Tribunal accepts that the applicant’s father was not in Gujrat when this incident allegedly occurred because he was primarily living in Lahore at that time. However, as discussed with the father at the hearing, the Tribunal would expect the father to seek and recall clear and direct details about an alleged assault on his wife by members of her family, particularly given that she was pregnant at the time of the alleged assault.

131. The father claimed that during this assault his wife sustained an injury to her hand when she was pushed and fell onto a table. However, the father provided vague and unclear evidence as to what material from the table caused the injury to his wife’s hand. He initially stated that the injury had been caused by either wood or glass from the table and when asked to clarify which of the two materials had caused the injury, he stated that she had fallen on the corner of the table. He then added that the table was made of both glass and wood which, as discussed with the applicant at the hearing, appeared to the Tribunal to be an answer that he provided to cover up the failings in his evidence. The Tribunal accepts that the applicant’s father was not present when the alleged incident occurred. However, it would expect that the father would endeavour to ascertain the facts about such an incident with some detail, especially given that the incident is an alleged assault on his then-pregnant wife resulting in a wound on her hand. Such details would include clear details about the material or materials that caused the wound, even if the wound was caused by both wood and glass, rather than an either/or answer as provided by the applicant’s father.
132. The applicant’s mother chose not to give evidence at the most recent Tribunal hearing. In previous evidence to the Department and the Tribunal (differently constituted) she did state that she feared harm from members of her family and that she had called police on two occasions seeking protection from her brother and uncle. However, she did not raise this alleged incident where she was assaulted and harmed by her brother in any of her evidence to the Department or the Tribunal. The Tribunal does not draw any adverse inference from the failure of the mother to raise this incident over time, however, the Tribunal notes that it does not have any evidence before it directly from the mother to consider when assessing whether this incident occurred as claimed.
133. On the basis of the evidence before it, as discussed above, the Tribunal does not accept that the applicant’s mother was ever threatened by her brother or other aggrieved family members whilst living in Gujrat after her marriage or that she was ever assaulted by her brother after her marriage whilst she was living at the home of her husband’s family or that she ever suffered any harm as a result of this alleged assault. Accordingly, the Tribunal also finds that members of the applicant’s father’s family did not report any such alleged assault to the local police as claimed.
134. Based on this finding, the Tribunal also finds that the applicant’s mother was able to live in Gujrat, Pakistan with her husband’s family after her marriage in 2007 until she came to Australia in September 2010 without suffering any harm from aggrieved family members or from any other person. The Tribunal further finds that the fact the applicant’s mother lived with her husband’s family at various locations in Gujrat from 2007 to September 2010 (including at the home of the husband’s parents and the home of the husband’s uncle) without suffering any harm is strongly indicative that none of her family members were concerned or aggrieved in any way about the marriage of the couple and that they had no ongoing adverse interest in the couple in any way.
135. Based on these findings, the Tribunal also finds that the relocation withing Gujrat of the applicant’s parents after their marriage (including to the homes of the husband’s parents and uncle) was not in any way related to any claimed issues with the allegedly aggrieved family members of the applicant’s mother.
136. The Tribunal has considered the evidence over time from both of the applicant’s parents that they are in a ‘love marriage’ that is not supported by some members of the applicant’s mother’s family, that these aggrieved family members seek to destroy the marriage and marry the mother to someone else, that these aggrieved family members have threatened harm to the mother and the father of the applicant over time (including whilst they were in Pakistan and since they have come to Australia) and that on two occasions the mother needed to call police to seek protection from her brother and uncle, that they would seek to forcibly marry or otherwise harm (or both forcibly marry and harm) the applicant as revenge for their wounded ego and pride and that through messages conveyed to the couple in Australia by the mother’s sister it has been made clear to them that these aggrieved family members continue to seek out and want to inflict harm on the mother and the applicant.
137. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
138. However, apart from asserting the claims relating to members of the mother’s family being aggrieved that the couple married against their wishes and the consequent claims arising from this alleged grievance, neither parent has produced any documents or corroborating evidence over time to verify or support these claims since the applicant for protection was lodged in September 2015. This includes but is not limited to any police reports, statements from any witnesses or copies of communication between the couple and the mother’s sister or any other person. In addition, many of the claims made over time by the applicant’s parents are vague and undetailed. Despite the opportunity to do so, they have not provided any dates when any threats were made or received, any dates when reports were made to police or any dates when the mother’s sister communicated information to them.
139. On the evidence before it, the Tribunal finds that the details about how the applicant’s parents’ wedding was arranged and celebrated in a traditional Pakistani way and the fact that, following the wedding, the applicant’s mother lived with her husband’s family in Gujrat from 2007 to September 2010 without suffering any harm are strongly indicative that none of the mother’s family members were concerned or aggrieved in any way about the marriage of the couple and that they had no ongoing adverse interest in the couple in any way. This far outweighs the claims made by the applicant’s parents over time asserting that some of the mother’s family members were aggrieved that the couple married against their wishes and the consequent claims arising from this alleged grievance.
140. Therefore, having considered the evidence before it, the Tribunal finds that the applicant’s parents were not married in a ‘love marriage’ as claimed but were married in a traditional Pakistani marriage which was approved and supported by all members of both families. The Tribunal also finds that no family members of the applicant’s mother were ever aggrieved about the marriage of the applicant’s parents, that no family members have ever threatened to harm the applicant or her parents in any way either in Pakistan or since the family have been in Australia, that no family members of the applicant’s mother have ever wanted to or sought to harm the applicant or her mother in any way and that no family members of applicant’s mother have any ongoing adverse interest in the applicant or her family in any way.
141. Based on these findings, the Tribunal is not satisfied that if the applicant went to Pakistan now or in the reasonably foreseeable future that there is a real chance that she would face any harm from aggrieved members of her mother’s family for any reason whatsoever, including any fears that they would physically harm her (including any risk of attacking her with acid), take her away from her parents or seek to forcibly marry her against her wishes or the wishes of her parents.
142. The Tribunal has considered the vague claims over time, including at the most recent hearing, from the applicant’s parents that they feared the applicant may be randomly physically attacked by strangers in Pakistan, including the risk that she may have acid thrown at her. At the most recent hearing, the applicant’s father was asked who he feared may do this to his daughter. His response was that he could not comment because he did not know yet. On the basis of this response, the Tribunal finds that this fear expressed by the applicant’s parents that the applicant may be randomly physically attacked by strangers in Pakistan, including having acid thrown at her, is merely speculative and not well-founded. Therefore, the Tribunal is not satisfied that there is a real chance if the applicant went to Pakistan now or in the reasonably foreseeable future that she would suffer any harm for reasons of being physically attacked by strangers or have acid thrown at her as claimed.
143. Apart from the claims that the applicant may be forced into a marriage against her will by aggrieved members of her mother’s family, which have been dealt with above, the Tribunal has also considered whether the applicant faces the risk of being forcibly married more generally if she lived in Pakistan.
144. In its latest country information report on Pakistan, the Department of Foreign Affairs and Trade discuss the prevalence of forced marriage of young girls in Pakistan as follows:
Forced and underage marriage is a widespread problem in Pakistan. Religious minorities are at particular risk (see Christians, Hindus). A frequently-quoted estimate is that about 1,000 forced marriages take place in Pakistan each year. While the marriage age for girls is technically 16, Islamic jurisprudence provides for girls to be married once they reach puberty. Girls as young as 12 have been abducted, raped, threatened with violence and, in some cases, forcibly converted to Islam. In tribal areas, forced marriages are sometimes ordered by traditional jirga councils under a custom known as badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men. [4]
[4] DFAT Country Information Report – Pakistan, January 2023, para 3.97, p 32.

145. Based on this country information, the Tribunal accepts that forced marriage is an issue for girls and young women in Pakistan. However, in the applicant’s case it has already been found that she would not face a real chance of any harm from forced marriage imposed on her by any aggrieved family members. In addition, in the applicant’s own personal situation, her parents have made it clear in their evidence over time that they would not support the forced marriage of the applicant. Although, as pointed out by the applicant’s father at the hearing, this does not offer the applicant an absolute guarantee that she may not be forcibly marriage against both her parents’ and her own will, the Tribunal finds that in the fact both parents are not supportive of a forced marriage offers the applicant, in her own personal circumstances, an additional level of protection against such forced marriage. No claims have been made on behalf of the applicant and none arise on the facts before the Tribunal that the applicant is or would be the subject of any blood feud or land dispute. The applicant is a Sunni Muslim and is not a member of a religious minority that the country information referred to above suggests would escalate the risk of forced marriage.
146. On the evidence before it, including the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that the chance of the applicant being forced into a marriage against her will in Pakistan is remote. Therefore, on the evidence before it, the Tribunal is not satisfied that there is a real chance if the applicant went to Pakistan that she would face any harm for reasons of being forced into marriage against her will.
147. It has also been argued on the applicant’s behalf over time that she is well-settled in Australia and that she would struggle to live in Pakistan because she is not used to that country and does not have a good command of the Urdu language most commonly used in Pakistan.
148. The Tribunal accepts that the applicant has lived her entire life in Australia, is well settled into family and school life in Australia and has never lived in Pakistan. The Tribunal also accepts that, despite the family primarily speaking Urdu in their own home in Australia, the applicant currently has a far more limited capacity to speak and understand Urdu than an average girl of the same age who has been born and lived in Pakistan. However, as discussed with the applicant’s father at the most recent hearing, the applicant would have the support of her family including her parents to help her adjust to life in Pakistan and there is no evidence before the Tribunal that the applicant (who is [an age] year old girl) would struggle to either adapt to life in Pakistan or to quickly embrace and learn the Urdu language if she started attending school on arrival in Pakistan. In fact, at this hearing, the father agreed with the Tribunal’s assessment that the applicant would be able to quickly learn Urdu if she started attending school in Pakistan.
149. Accordingly, based on the evidence before it, the Tribunal finds that if the applicant went to Pakistan now or in the reasonably foreseeable future, she would be able to quickly adjust to life in Pakistan and would be able to quickly obtain a command of the Urdu language to a level that would enable her to function in Pakistani society. Therefore, the Tribunal is not satisfied that, if the applicant returned to Pakistan now or in the reasonably foreseeable future, there is a real chance that she would suffer harm for reasons of not being used to life in Pakistan or for reasons of not having a good command of the Urdu language.
150. Apart from the claims considered above, no other claims for protection have been made on behalf of the applicant and no other claims arise on the facts before the Tribunal.
151. Having considered all of the applicant’s claims individually and cumulatively, on the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
152. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

154. The Tribunal has already found that if the applicant went to Pakistan that there is no real chance that she would face any harm for reasons of aggrieved family members of her mother wanting to forcible harm her, take her away from her parents or forcibly marry her against her will or for reasons of being physically attacked by strangers or having acid thrown at her or for reasons of being forced into marriage against her will more generally (separate and apart from any claims related to allegedly aggrieved family members) or for reasons of not being used to life in Pakistan or for reasons of not having a good command of the Urdu language.
155. On the basis of these findings, and given that the real risk test for the purposes of s36(2)(aa) is effectively the same as the real chance test for the purposes of s36(2)(a)[5], the Tribunal is not satisfied that if the applicant went to Pakistan there is a real risk that she would face harm for reasons of aggrieved family members of her mother wanting to forcible harm her, take her away from her parents or forcibly marry her against her will or for reasons of being physically attacked by strangers or having acid thrown at her or for reasons of being forced into marriage against her will more generally or for reasons of not being used to life in Pakistan or for reasons of not having a good command of the Urdu language.
[5] MIAC v SZQRB (2013) 210 FCR 505.
156. Apart from these claims, no other claims have been made on behalf of the applicant that she fears harm for any other reason if she went to Pakistan and no other claims arise on the facts before the Tribunal.
157. Having considered all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm if she were to go to Pakistan.
158. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

160. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Katsambanis
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2420

2 May 2023

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