2009528 (Refugee)

2009528 (Refugee) [2023] AATA 4476 (26 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mohammad Ajmal Malik (MARN: 0105748)
CASE NUMBER: 2009528

COUNTRY OF REFERENCE: Pakistan
MEMBER:Ann Duffield
DATE:26 September 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 September 2023 at 11:50am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – mixed religious marriage – mixed caste marriage – love marriage – physical assaults by family members – fear of honour killing – consent of the families – return visits to Pakistan – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Pakistan applied for the visas on 28 July 2017. The delegate refused to grant the visas on, on 1 June 2020, on the basis that they were not persons to whom Australia owed protection obligations.
The applicants appeared before the Tribunal on 16 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicants are citizens of Pakistan. They have provided documentary evidence of their identity, nationality and/or citizenship. There is no evidence before the Tribunal indicating that any of the documents are bogus. The Tribunal has therefore conducted this assessment on the basis that Pakistan is the receiving country.
The primary applicant, [Applicant A], is a citizen of Pakistan born on [date]. The other two applicants are his wife born on [date] and his son born on [date]. The applicant and his wife, the secondary applicant, each have their own claims.
[Applicant A] first arrived in Australia on a student visa in March 2009. He was granted several other student visas after that time and returned to Pakistan several times. In August 2013, the second applicant, [Applicant B], arrived and they were married in January 2014. He was subsequently granted a temporary work, skilled visa in April 2014 and departed Australia for Pakistan on multiple occasions in 2014, 2015 and 2016.
[Applicant B] also departed Australia on several occasions, travelling with [Applicant A] to Pakistan [in] January and also to [Country 1] in 2016.
[Applicant A’s] temporary work visa was cancelled on 1 April 2016. Subsequent applications for alternative visas were refused during 2016 and 2017 until they eventually applied for a protection visa in July 2017. Their son was born in Australia in [specified year].
[Applicant A] lived in Sargodha in 2006 and met [Applicant B] whilst he was there. In 2008 his father retired, and the family moved back to Gujrat. Sunni is the majority faith in Gujarat (and the rest of Pakistan comprising 76% of the population).
Protection claims Applicant [Applicant A]
The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.
[Applicant A] claims that he and his wife married without the consent of their families. His wife, [Applicant B], belongs to another religion and case. He is from a Sunni family and [Applicant B] is from a Shia family. If they return to Pakistan they will be killed.
Upon his return to Pakistan in March 2014 he claims he was attacked by three men, including his wife’s brother. The men threw boiling milk on him. He became unconscious and suffered burns to his [specified body parts]. He was taken to [Hospital 1] Hospital. He returned to Australia [later in] March 2014.
[Applicant A] claims that [in] February 2015 his father was physically attacked and his home vandalised. One the attackers was his wife’s brother and the others were religious extremists. [In] February 2016 his brother was attacked by five men. Again, one of the men was the brother of his wife. He was hospitalised as a result of this attack.
[Applicant A] has provided copies of two First Information Reports (FIRs) to the Pakistani police as follows:
a.FIR, [Police Station 1], Gujrat, [in] February 2015 lodged by [Applicant A’s] father stating that he was beaten up and his house vandalised by [Relative A] ([Applicant B’s] brother) and two unknown men.
b.FIR [Police Station 2], Sargodha dated [in] November 2014, lodged by [Relative A] ([Applicant B’s] brother) stating that on [that day in] November 2014 his family home was forcefully entered and vandalised and his sister’s life threatened by [Applicant A’s] uncle and two unknown persons.
Protection claims Applicant [Applicant B]
[Applicant B] claims that she and her husband entered into a love marriage without the consent of their parents. Her husband is of a different caste and faith. This is considered to be a great sin and dishonours the family.
She claims that on [a day in] November 2014 her husband’s uncle came to her family home with two unknown religious extremists. They forced entry to the home and vandalised it. The armed men threatened to kill her.
[In] August 2015 [Applicant B] claims that her uncle and his family were at her family home when the uncle of her husband and three other people forcibly entered the house. They were shouting and saying that she had dishonoured their family by marrying a Sunni person of a different caste without family permission. They wanted revenge and to regain their family honour. She claims that her brother was physically assaulted by the uncle of her husband.
The parties provided the delegate with a number of documents including the following:
a.Copy of religious organisation card – [Organisation 1] for [Applicant A]
b.Copy of religious organisation card – [Organisation 2] for [Applicant B]
c.Disinheritance Statement – undated – allegedly from [Applicant A’s] father
d.Temporary residence permit for [Country 1] in the name of [Applicant B] valid from 14 May 2014 until 30 September 2015.
e.Medical certificate dated 22 March 2014
f.Media articles about honour killings.
[Applicant A] provided the Tribunal with further information, submissions and statements from both he and his wife prior to the scheduled hearing, including the following:
a.Several court judgements made in Lahore, Pakistan in relation to the prosecution of honour killing cases.
b.Statement from [Applicant A] dated 19 June 2019 (also on the department’s file)
c.Statement from [Applicant B] dated 17 June 2019 (also on the department’s file)
d.Statement of Disinheritance (undated) also on the departments file
e.FIR dated [in] February 2016 (also on the departments file)
f.FIR dated [in] November 2014 (also on the department’s file)
g.FIR dated [in] February 2015 (also on the department’s file)
h.FIR dated [in] March 2014 (also on the department’s file)
i.Submission dated 10 August 2023
In their submission dated 10 August 2023 the applicants, through their representative canvas the same claims as were put before the department along with the same documents provided as evidence of those claims. They do, however, also address the matter of the FIR’s and the delegate’s rejection of them as genuine documents or evidence of a crime. In forming that view the delegate relied on DFAT information indicating that FIRS are not considered by them to constitute evidence that the events described in the FIR actually occurred and also the prevalence of fraudulent documentation in Pakistan.
Country information
DFAT Country Information report Pakistan (25 January 2022) PAKISTAN - DFAT Country Information Report - 25 January 2022
2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks
First Information Reports (FIR’s)
5.54 Union councils and NADRA can verify whether documents are genuine, but they may not be able to identify fraudulently obtained genuine documents. NADRA issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still available from hospitals. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR occurred.
Honour killings
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).
Inter-Sect marriage
DFAT states in its Country Information Report on Pakistan dated 1 September 2017 that, "[t]here are no formal legal barriers to inter-sectarian marriage between Shi'a and Sunnis in Pakistan" and "such marriages do occur across the country (most commonly in large cities such as Lahore)" (para. 3.37). However, the same report adds that according to "credible sources," "Sunni-Shi’a marriages are becoming less common in the face of increasing religiosity across the country" ( para. 3.37). The report further states that "[w]hen inter-sectarian marriages do occur, one partner (typically the bride) usually undergoes religious conversion" (para. 3.37). Country Portals - DFAT Country Information Report Pakistan (1 September 2017).pdf - Standard View (sharepoint.com)
Caste system in Pakistan
In a scholarly article about the caste system in Pakistan published in April 2022, it is stated that three levels of hierarchy exist in the caste system; level 1 contain the “high” castes which include Jatt, Rajput, Mughal, Arain, Baloch, Butt, Mirza and Oray. Level 2 contains the “middling” castes and Level 3 the “low” castes. Both the applicant and the secondary applicant belong in the High Caste. Caste in Muslim Pakistan: a structural determinant of inequities in the uptake of maternal health services - PMC (nih.gov)
Tribunal hearing
The parties appeared via Teams along with their representative in Sydney. The Tribunal confirmed with them that they had received an invitation to attend an in-person hearing in Canberra, their hometown, and they confirmed this. Asked why they did not choose to attend in person they said that their representative had asked them to come to Sydney. The Tribunal confirmed with the parties that they were content to proceed with a video hearing and they confirmed this.
[Applicant A] told the Tribunal that his father used to work in [a named agency]. His mother was a housewife, and his siblings reside in various places. One brother lives in [Country 2] and one came to Australia in around 2012 or 2013 as a student. The family remain living in their family home.
[Applicant B] said that her parents live in Sargodha and her father travelled abroad for most of the time. He spent some time living in [Country 1] and she also spent some time living there. She has a brother in [Country 3] and her other [siblings] live with her parents in Sargodha. This is the family home and they have lived there for a long time.
The Tribunal asked [Applicant A] about a translated document he provided entitled “Affidavit” that they provided to the Tribunal on the morning of the scheduled hearing. It is dated 26 September 2017. The Tribunal asked if this document was before the department when they made their decision and he said that he didn’t think they needed it. He said he only became aware that the undated court document was an issue when they received the decision in June 2020. The Tribunal noted that the affidavit was dated September 2017 and asked why, if he did not know that the undated court document was an issue until after he received the decision in 2020, he asked for it in September 2017. He said it wasn’t necessary to give it to the department. Asked how he obtained the affidavit if he wasn’t speaking to his father, he said the lawyer obtained it. [Applicant A] said that his father didn’t write this and give it to him but had removed him from his inheritance. The Tribunal notes that the original “statement of disinheritance” made by the Court in Gujrat was translated by the NAATI-accredited translator in Australia on 16 October 2017.
The Tribunal is concerned about the reliability of these documents as corroborating [Applicant A’s] claims. For example, if they didn’t know it was an issue before the decision was made in June 2020, why did they ask for an affidavit confirming it? Further complicating the matter is the fact that the date of the affidavit translation is 26 September 2017 and the date of translation of the Statement of Disinheritance is dated 16 October 2017 when the applicant says that he didn’t realise that the undated statement of disinheritance was a problem until 2020.
Both parties told the Tribunal that they did not have anything to do with their families since around 2015 and do not know if they were being harassed or harmed in any way. The Tribunal suggested that the families could have forgotten about their differences. [Applicant B] said it was impossible for them to forget as so many incidents have happened since that time, particularly in relation to her brother.
The Tribunal suggested to the applicants that they could return to Pakistan and live somewhere else and not be harmed. [Applicant B] told the Tribunal to Google honour killings in Pakistan. She said that disgracing the family and honour killings are widespread in Pakistan and in Karachi people are killed walking down the street because the security and law situation is so bad and the Shi’a/Sunni conflict is quite prevalent. [Applicant B] referred the Tribunal to an Australian news article from May 2023 showing that there are a lot of honour killings in Lahore and the police refuse to participate. The Tribunal reminded her that she had sent it a large number of court cases dealing with honour killings suggesting that the justice system is dealing with the crime. [Applicant B] said that some cases do manage to get registered but in one case, when the woman came into the courtroom directly, she was shot by her father.
The Tribunal asked the parties how their families would know if they returned to Pakistan, and they said that it would be easy to find them on social media. [Applicant B] said her family would be able to find her when she arrived at the airport immediately. She continued that religious extremist would find her at the airport and reminded the Tribunal that her brother was a religious extremist. She suggested that people could advertise in the newspaper. [Applicant B] said that people got away with honour killings, and it was easy to track people electronically. The Tribunal put to the parties that they had stated previously that they had no information about their families so it did not appear that they were being tracked on social media so could they know about them. [Applicant B] said it can be very easy as they have extended families and relatives and news can go viral. She said that the mobile number can be easily tracked if its registered and the National Identity card in Pakistan can be used by people to track you. She said that if people had money and resources, they could find them easily.

The Tribunal asked if access to social media their families is how found out that they were married, and [Applicant B] said that she didn’t know. She said that they kept their marriage confidential for quite a while, but [Applicant A’s] brother is in Australia, and he might have told the family. She said that he was against the marriage but can’t do anything here in Australia as his hands are tied as the laws protect them. She said that her husband has a lot of contacts back home and the Jatt caste will automatically know when her husband arrives.
[Applicant A] said the Nikah was done in January 2014. The Tribunal put to him that [Applicant A] was attacked in March 2014 and how was it possible if they kept it secret. [Applicant B] said that the Nikah was done very discreetly between four or five people at someone’s house. Before that people were already upset because they heard rumours but it was confirmed from around 2016. Their marriage was officially registered on [a day in] July 2014, and his brother was a witness, and she said that she through that the family knew that they were married in around 2016.
[Applicant B] said the secretive marriage was done in January 2014 it was a verbal ceremony and two of his friends were there. They could not do it at the Mosque, because they refused because they needed a guardian. The Tribunal asked if the nikah was nullified because there was no guardian as required by Islam. [Applicant B] said that religiously it was not necessary to put it in writing, if we want to get married with witnesses we can enter into a verbal marriage.
The Tribunal put to [Applicant B] information it obtained from a scholarly article that suggests that without a guardian the marriage is not recognised in Islam and asked [Applicant B] to provide some other information or evidence to indicate that the Tribunal’s information was incorrect. [Applicant B] said that there are different opinions in relation to Islamic marriage and she said that the marriage was considered valid if both parties give their verbal consent, were over the age of 18 and there were four witnesses, and the marriage is valid. She also said that their marriage is legal in Australian law.
The Tribunal put to [Applicant B] that according to information before it the Islamic marriage doesn’t distinguish between sects but that the Nikah ceremony requires the bridge and groom, the bride’s father or male relative, two other adult Muslim witnesses and an Imam or other religious official and that without these conditions being met it was not considered valid and asked [Applicant B] to comment.
The Tribunal put to [Applicant B] that if they were secretly married in a verbal Nikah in January 2014, so nobody could have found that out, and her brother-in-law was not there, how then was it that her husband was attacked in March 2014, allegedly because people found out that they were married. [Applicant B] said that when she came to Australia, she was supposed to live in shared accommodation, but she started living with her husband and this news eventually came out and people became suspicious that they were having a relationship and living together, and her brother therefore targeted her husband.
[Applicant B] said that her family was suspicious that they were living together. [Applicant B] told the Tribunal that there was a marriage celebrant present. She said that her husband’s old friend was a religious celebrant and he officiated via video call. She said that in relation to having a guardian present it is not necessary. The Tribunal put to [Applicant B] her previous evidence that the reason it was a verbal ceremony and secret was because there was no guardian. The Tribunal put to her that she was now saying something different and asked her to clarify. [Applicant B] said that there are different sects and denominations and the religious celebrant in Australia refused stating that he needed the guardian however the religious celebrant in Pakistan was willing to do that without the guardian.
The Tribunal asked [Applicant B] to clarify finally what happened at her Nikah. [Applicant B] said that the celebrations happened in the presence of four witnesses. Some were the friends of her husband. The Nikah ceremony was done at a family home and the marriage was officiated by an official based in Pakistan via video in Pakistan. She said that they didn’t need a guardian to be present and this was legal in “our” religion. The Tribunal asked [Applicant B] to clarify which religion she was talking about as they both claimed to be from different sects. She said that according to both sects the Nikah was valid as long as both parties were of age and of sound mind and consented.
The Tribunal asked [Applicant A] when he believed his family found out about the marriage and he said that they found out about the official marriage much later, but they were suspicious that there was a relationship from the beginning. He said that he believed they found out when his wife was pregnant. Asked how they found out that his wife was pregnant he said that his brother would have told them. Asked why he didn’t think his brother told his parents about the marriage in Australia in July 2014 he said that he wouldn’t have told them. Asked how he could be sure about that [Applicant A] said that when he went to Pakistan in 2014 to get his family to agree to the marriage, they had no idea that he and [Applicant B] were already married. He said that they were suspicious because they had been living together since she arrived in Australia. He said that it was not completely clear to his parents until [Applicant B] was pregnant. Asked how his family knew that he and [Applicant B] were living together he said that his brother would have told them. Asked why then they didn’t know about the marriage in July 2014 when his brother was a witness, he said that he was sure his brother would not have told him then. The Tribunal said that it would be unlikely for his parents to be happy about them living together but not married given their objections. He said that they may have had a perception about their arrangements but did not know.
The Tribunal asked if it would be possible to speak to his brother and [Applicant A] said that they didn’t want his brother involved. The Tribunal put to [Applicant A] that his brother was already involved as he was a witness at their wedding in July 2014. [Applicant A] provided the number for his brother but was unable to contact him during the hearing. The Tribunal asked if his brother could provide a statement after the hearing.
The Tribunal asked [Applicant A] if they felt that the caste system was still an issue for them in their marriage, [Applicant A] said that [Applicant B] was from a lower caste, and they were considered servants.
[Applicant A] said he was not aware about the levels of the caste system put to them by the Tribunal. Asked how he then knew that his wife was from a lower caste he said that other people say so. He said that it didn’t care to either of them what their caste or sect was. He said that they love and support each other and didn’t think that it would make any difference. The Tribunal put to the parties that they were nevertheless claiming that they would suffer persecution because of their different castes should they return to Pakistan. The Tribunal put to [Applicant A] that if there’s no way of characterising the system, then they why would it make any difference and why would they be persecuted.
[Applicant B] told the Tribunal that when it comes to the Caste System people ask inquisitive questions to establish what caste you are from and what sect and these questions are used to decipher where one sits in the hierarchy. She said that her husband was considered from the higher Jatt caste which is characterised by violence. She said that all castes are strongly discouraged not to marry outside the caste system. She said that this rule is prevalent for all castes. She said that in relation to the family the first and most important thing that must be satisfied is that the couple are from the same caste. The Tribunal put to the parties that it had no country information before it which indicated that was the case and asked them to provide any information which supported their understanding of the prevalence and primary of the caste system in relation to marriage.
The Tribunal put to the parties’ information from a scholarly article about the caste system in Pakistan published in April 2022, which shows three levels of hierarchy exist in the caste system; level 1 contain the “high” castes which include Jatt, Rajput, Mughal, Arain, Baloch, Butt, Mirza and Oray. Level 2 contains the “middling” castes and Level 3 the “low” castes. Both the applicant and the secondary applicant belong in the High Caste, being Jatt and Arain respectively. Caste in Muslim Pakistan: a structural determinant of inequities in the uptake of maternal health services - PMC (nih.gov)
The Tribunal put to the parties that according to the article, they were both in the same High Caste, albeit in separate sub-groups. [Applicant B] said that when it comes to ranking they are not saying that his ranking is higher than mine. She said that they are of two completely different castes and people are not allowed to marry outside their caste. The Tribunal put to the parties it was unable to locate any country information to support those claims. The Tribunal put to them that the delegate also found no information to support those claims and asked them why they did not make a submission addressing that issue since it was a central concern.
[Applicant B] said that their previous agent did not provide them with proper advice. She said that they were not properly informed about what information they needed to provide. She said that she would like more time to provide some evidence after the hearing and the Tribunal agreed to receive further submissions after the hearing.
The Tribunal asked the parties what caste and religion they had decided upon for their daughter and how would one go about proving what sect one is and whether maternal or paternal lines determined caste. [Applicant B] said that they live in Australia now and do not need to follow any religious sect or caste system. They would not force her to be one thing or another and it was something she could decide when she grows up. The Tribunal acknowledged that but told them that they were not seeking protection from Australia but from Pakistan in relation to their caste and religion and it was asking these questions to try and understand why and if they would be persecuted in Pakistan for those reasons.
The Tribunal asked the parties about the First Information Reports provided in relation to alleged incidents of harm perpetrated against them in Pakistan and asked if anyone been questioned, arrested, convicted because of those reports and [Applicant A] said that he did not know.
The Tribunal asked the applicant about the incident where he claims that someone threw hot milk at him in March 2014. He said that he was near his home in Gujrat and was crossing the street. A man in a street stall was cooking milk. He said that it was very common to have open stalls and they cook milk for tea or yoghurt. Suddenly someone behind him pushed him and he fell forward into the milk. He said that it was his wife’s brother. Asked why his wife’s brother was in Gujrat when he lived more than 3 and a half hours away he said that he came to Gujrat to kill him. He said that he knew that he had come back from Australia. Asked how he would come to know that he was in Gujrat, [Applicant A] said that his wife’s brother was a Shi’a extremist, and it would be very easy for him to extract information and know that he would be back in the country.
The Tribunal put to [Applicant A] that he requested the FIR. Asked what that meant [Applicant A] said that he went to the police station to personally make the report and provide the information to the police. The Tribunal said that in the report he claims that his wife’s brother threw the hot milk at him but is now claiming that he fell into the milk. [Applicant A] said that he was not responsible for how the police wrote the report.
The Tribunal put to [Applicant A] that he left his house at around 7pm and asked how much later he fell into the milk, and he said it was around 10 minutes later. Asked what happened after that he stated that people helped him and took him to the hospital. Asked what people helped him he said that they were just bystanders, just people walking past. Asked if he remembered anything else that he said in the FIR he said that was all he remembered. The Tribunal put to him that he also claimed that he lost consciousness at the scene. He confirmed that he was unconscious at the time that he was taken to hospital. When further pressed, he said that he wasn’t completely unconscious. He said that he had some very minimal consciousness, so he has some faint recollection of being asked some questions. Asked for more detail about how he got to the hospital he said that he has taken to the [Hospital 1] and the bystanders took him but he didn’t know who they were. The Tribunal reminded him that he named several people in his FIR as people who took him to the hospital. He said maybe he remembered some people. Asked if the people who took him to hospital were known to him and that’s why he remembered their names he said that only one person who was known to him but he was not a close friend.
Asked if there were any other details about that incident that he remembered he said that he did not. The Tribunal put to him that he said in the FIR that local police also arrived at the same time he said that he didn’t say that to the police when he made the report. [Applicant A] said that the police can say whatever they want and will write it how they please. The Tribunal put to him that he had specifically told the Tribunal that he went to the police station and gave them the information to make the report. He said that the police can say whatever they like. The Tribunal put to him that in the report another constable provided the medical report and asked how they came to have the medical reports at the time of the report since he was at the hospital. The applicant said that he made the FIR on the following day and that the time recorded in that report was the time of the incident. The Tribunal asked the applicant how it could rely on an FIR if the police could say whatever they wanted.
Unfortunately, after three hours the interpreter had to depart the hearing and the Tribunal therefore asked the applicants to provide comments on the following concerns. The Tribunal indicated that they could respond to those concerns in writing, or it would reschedule a further hearing where they could address those matters. The parties indicated that they would provide the Tribunal with further information in writing.
The Tribunal put to the applicants that it had several concerns with the FIR’s provided including the view of the DFAT that does not consider them reliable evidence of incidents that may have been committed. The Tribunal put to [Applicant A] that he had given evidence that he did not know whether anyone had even been questioned in relation to the incident and put to him that he could report whatever he wanted to the police but that did not mean that an incident occurred. The Tribunal also put to the applicant that his own evidence was that police put in the FIR information that he had not given them and questioned how reliable it could be. The Tribunal also asked the parties to clarify the confusion around the documents it spoke to at the beginning of the hearing, being the “Affidavit” and the “statement of disinheritance”.
The Tribunal also asked the parties if they could provide additional information in relation to the reasons why they feared persecution because of their inter-caste and inter-sect marriage. The Tribunal put to them that the country information before it did not indicate that these matters would be a reason why they would face persecution. The Tribunal noted that country information may not reflect their own lived experience and asked for a submission on those issues. The Tribunal noted that whilst inter caste and inter sect marriages may be considered unfavourably in remote areas, both their families were well off and lived in large and diverse cities indicating that they were less likely to view their marriage unfavourably.
The parties told the Tribunal that they would provide additional information in writing after the hearing.
Material received after the hearing
On 6 September 2023 the Tribunal received a submission from the applicants through their representative. The applicants provided the following information:
a.There are many ways in which a Muslim marriage can be valid even without the consent of the family or the presence of a guardian.
b.Inter-case marriages are frequently deemed unacceptable and many families strongly oppose such unions. 1,000 women are killed in the name of honour ever year in Pakistan and the victims are widely perceived to have brought shame and dishonour to their families either by marrying against their will or having an affair. The applicants provided a number of case studies of honour killings as a result of couples marrying without the consent of their parents.
c.Shia/Sunni conflicts in Pakistan – In 2013 approximately 700 Shia were killed and more than 1000 injured in more than 200 sectarian terrorist attacks. Over 90 percent of those attacks occurred in Quetta, Karachi, Kangu, Islamabad and Rawalpindi. Commentary on the hostility between Sunni and Shia.
d.Differences between Arain and Jatt castes indicating one is a warrior caste and the other agrarian. Commentary on both castes preferring to marry within the caste.
Findings and reasons
The claims of both applicants are the same in that they both, individually and as a couple claim to have suffered significant harm and will suffer significant harm in the future if they are required to return to Pakistan on the basis that they are in an inter-sect, inter-caste marriage that does not have the consent or support of their families. The Tribunal has therefore proceeded to assess their claims individually and as a couple as follows.
The Tribunal found the evidence provided by the parties to be evasive, incomplete, lacking in relevant detail and wholly unpersuasive.
Based on the evidence before it, the Tribunal does not accept that even if the parties are of different caste and sect, it is not satisfied that they have been persecuted or suffered significant harm, or will be in the future, either individually or as a couple for that reason, or indeed for any other reason. As the Tribunal does not accept that the applicants have been persecuted by reason of their alleged inter-caste and inter-sect marriage, it follows that it does not accept that the FIR’s corroborate those claims but have been fabricated for the sole purpose of supporting their protection application. The parties have not claimed, either individually or as a couple, that they fear persecution for any other convention-related, or indeed any other reason.
On the basis of the evidence before it, the Tribunal is not satisfied that either [Applicant A] or [Applicant B] suffered persecution in the past or will suffer persecution in the future for the reasons stated or for any other reason. For the reasons below the Tribunal is not satisfied that either party meets the criterion set out in s36(2)(a) or s.36(2)(aa).
The Tribunal does not accept that the parties married without the consent of their families. [Applicant A] and [Applicant B] have claimed that their families are conservative, and [Applicant B] herself continues to wear the hijab in Australia. They have both claimed that [Applicant B’s] brother is an “extremist” capable of finding them and killing them. However, this is wholly inconsistent with their narrative that [Applicant B] was supported by her family, in particular her brother, in travelling to Australia in August 2013 at the encouragement of [Applicant A], to study.

The parties have submitted that [Applicant B] began living at [Applicant A’s] address shortly after she joined him in Australia in August 2013. [Applicant A’s] brother was also living at this address with [Applicant A]. Again, this is inconsistent with the narrative as the parties have claimed that [Applicant A’s] brother was not supportive of the marriage. If he was not supportive of the marriage its difficult to reconcile this with his agreement of living in the same accommodation as [Applicant B] when she was not married to his brother.
The parties have then gone on to claim that no one amongst their families in Pakistan were “officially” aware that they were married until their child was born in [year], although this claim has varied with them claiming that some members of the family knew, or “suspected” around 2017 and perhaps even in 2014 when they were married. They have variously claimed that [Applicant A’s] brother, who despite allegedly being against the marriage nevertheless was a witness at the Nikah and the Australian marriage ceremony, may have told someone in early 2014. This latter claim has been made, in the Tribunal’s view, to support their claim that [Applicant A] was attacked by [Applicant B’s] brother in March 2014 because he was aware of the marriage.
The parties have also claimed that several other attacks against their respective families were conducted by members of the others’ family including by [Applicant B’s] brother (labelled a religious extremist) and [Applicant A’s] uncles. These alleged incidents occurred in November 2014. August 2015, February 2015 and February 2016 again, before the families “officially” found out about their marriage in 2017. The parties have provided FIR’s documenting these claims. The Tribunal, however, does not accept that the FIR’s corroborate the alleged incidents. They have stated that there have been no investigations conducted or people questioned or apprehended because of these reports despite some of the alleged perpetrators being named. [Applicant A] himself has said that the police can write whatever they want so even at best they are unreliable documents. The Tribunal is minded accepting the DFAT advice that FIR’s do not constitute evidence of crimes reported. The Tribunal finds that these documents have been contrived to support the parties protection claims and for no other reason.
The Tribunal has formed a view that the parties have contrived two narratives around the discovery of their marriage for two different reasons. The narrative which includes the discovery of their marriage in early 2014 is contrived to support their claims that [Applicant A] was attacked with hot milk by [Applicant B’s] brother in March 2014 because he discovered their marriage. In the Tribunal’s mind the parties have retrofitted this narrative to coincide with an incident where [Applicant A] was burnt with scalding milk and hospitalised, but not by [Applicant B’s] brother in the manner explained, or for the reasons claimed.
The second narrative has been contrived to explain whey they did not make their protection application until mid-2017. Both parties have argued that the reason they did not claim protection earlier was because their families only discovered their marriage in 2017 and were opposed. Up until that time they could, and did, return to Pakistan on several occasions. The Tribunal has formed a view that the reason they did not apply for protection prior to this time was because they in fact had no protection claims but they had exhausted all other visa applications available to them and an application for a protection visa was the only option available to them which may allow them to remain in Australia.
The Tribunal does not accept any of the accounts of the allegedly “secret” marriage or of its being “discovered” and thus meeting with the disapproval of various family members at various times leading to their persecution. The parties have known each other since Year 8 and spent a childhood and young adulthood together in Pakistan, welcomed by each side of the family. [Applicant B] says that she cooked for [Applicant A] when he frequently visited her at her home and the families were known to each other. [Applicant A] and [Applicant B’s]s allegedly extremist brother were best friends and discussed [Applicant B] travelling to Australia to study with [Applicant A]. The Tribunal has formed a view that [Applicant B] travelled to Australia specifically with the intention of marrying [Applicant A] and that this was arranged with the full knowledge and consent of both families.
The parties’ account of the marriage itself varied with [Applicant B] stating that it was not necessary for the presence of a guardian to an account which included them not being able to be married by someone in Australia because of the insistence of a guardian presence. The parties moved on to claim that they were married by a friend of [Applicant A] via video-link who was in Pakistan, and he agreed to marry them without a guardian present. If the marriage was indeed “secret” its difficult to accept that they would take the risk of involving a friend of [Applicant A] in Pakistan. In one account early in the hearing [Applicant B] said there were two witnesses and on another occasion there were four.
The parties’ written response after the hearing does not assist the Tribunal in that it asserts that Islamic marriages can take different forms and the presence of a guardian is not essential. Be that as it may, the difficulties that the Tribunal has in accepting the claims made by the parties is that they are inconsistent and change over time and indeed, changed during the course of the hearing. Despite being put on notice that the Tribunal had no information before that indicated inter-sect and inter-caste marriages in Pakistan resulted in persecution of the parties involved, the applicants did not provide a submission addressing that matter. There was some information provided in relation to honour killings which occurred when families did not consent to love marriages, however, as the Tribunal has found that the parties’ families arranged and consented to their marriage, this information is not relevant to the Tribunal’s considerations.
On the basis of the evidence before it, and for the reasons above it follows that the Tribunal does not accept that [Applicant A] has been disinherited and finds the documents corroborating this claim to be contrived and unreliable; the Tribunal does not accept that the parties families have been assaulting each other and that none of the incidents alleged to have occurred in 2014, 2015 and 2016 transpired and that the FIR’s corroborating these incidents are unreliable and contrived solely for the purposes of supporting their protection application; the Tribunal does not accept that the parties inter sect and inter caste marriage is viewed negatively by their families, or anyone else such that they would have a well-founded fear of persecution for that reason but that their marriage was in fact arranged and supported by their respective families.
On the basis of the evidence before it, the Tribunal does not accept that [Applicant A] has been disinherited, or subject to significant harm or that he will be subject to significant harm by reason of his marriage to [Applicant B] and the birth of their daughter should he return to Pakistan either now or in the reasonably foreseeable future.
On the basis of the evidence before it, the Tribunal does not accept that [Applicant B] has been subject to significant harm or that she will be subject to significant harm in the form of an honour killing or anything else by reason of her marriage to [Applicant A] and the birth of their daughter should she return to Pakistan either now or in the reasonably foreseeable future.
There is no evidence before the Tribunal would lead it to form a view that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk that either [Applicant A] or [Applicant B] will suffer significant harm for any other reason.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Ann Duffield
Senior 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 4476

26 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal