2010235 (Refugee)

[2022] AATA 602

2010235 (Refugee) [2022] AATA 602 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010235

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Noonan

DATE:27 January 2022

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 27 January 2022 at 4:11pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – Federal Circuit Court remittal – applicant fears harm from extended family – criminal forgiveness laws in Pakistan – educated woman –a returnee from the West – applicant’s fear of persecution is well-founded – state protection is limited – members of the same family unit – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91, 359, 424, 499

Migration Regulations 1994, rr 1.05, 1.12, Schedule 2, cl 866.211

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of Pakistan, applied for the visas on 9 September 2014 and the delegate refused to grant the visas on 23 October 2015. The Tribunal accepts, on the basis of passports retained on the Department file and the delegate’s assessment as such, that the applicants are citizens of Pakistan and has assessed their claims against that country.

3. As per [name deleted]’s (‘the applicant’) protection visa application, dated 24 March 2014 to the Department, she is a female born on [date] from [an area in] Pakistan. She lived in this area from July 2004 to July 2014. The applicant listed the ability to speak, read and write in both Urdu and English. She has completed a [degree] and described her occupation prior to arrival in Australia as [an occupation].

4. The applicant’s family were all born in Pakistan and are as follows:

Name	Date of Birth	Relation to Principal Applicant
[Deleted]	[Deleted]	The applicant (First named applicant)
[Deleted]	[Deleted]	Spouse (Second named Applicant)
[Deleted]	[Deleted]	Child (Third named applicant)
[Deleted]	[Deleted]	Child (Fourth named applicant)
[Deleted]	[Deleted]	Child (Fifth named applicant)
[Deleted]	[Deleted]	Mother of the applicant (Sixth named applicant)

1. The applicant’s relevant migration and visa history is as follows:

27 June 2014	Applicant is granted an FA600 Visitor Visa.
[July] 2014	Applicant arrives on a FA600 Visitor Visa (She has not departed since this date)
9 September 2014	Applicant lodges application for Protection (Class XA) Visa.
14 October 2014	Applicant attends an interview before the Department.
23 October 2015	The Department refuse the protection visa.
16 March 2017	The Administrative Appeals Tribunal affirm the Department’s decision [in] Melbourne.
[May] 2020	The Federal Circuit Court remits the matter by consent.

1. On 23 October 2015 the delegate refused to grant the visa on the basis that the applicant does not have a genuine, subjective fear of harm and as such her fear of harm is not well-founded. The delegate was also satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan that there is a real risk that she will suffer significant harm.

2. On 16 March 2017 the Tribunal (differently constituted) affirmed the Delegate’s decision (case number [deleted]), as it did not find the applicant’s claims and associated evidence credible. The applicant subsequently appealed that decision.

3. [In] May 2020 the matter was remitted by consent, with the Federal Circuit Court orders noting that: the first respondent concedes that the decision of the second respondent is affected by error, as it failed to consider the evidence from the applicant’s husband provided at the hearing before it. The first respondent accepts that this was cogent, relevant and significant evidence relating to her claims for the Protection visa.

4. The applicant and applicant two appeared before the Tribunal on 29 September 2021 by video conference. In using its discretion to conduct the hearing by video conference the Tribunal did so due to the ongoing COVID-19 pandemic and commensurate restrictions upon in person hearings. The Tribunal considered that if the hearing the matter would be inordinately delayed. Further the applicants are professionally represented in this matter. There were no technical issues experienced during the hearing and the Tribunal was satisfied at all times that the applicants were able to effectively put their case to the Tribunal. There were also no concerns raised during the hearing with respect to the format of the hearing by the applicant’s representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages with respect to witness evidence given from Pakistan during the hearing. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

5. A further hearing into the matter was held on 19 January 2022 with respect to the separate claims of applicant four after it was conceded that she is not a dependent of the applicant and she decided to make her own separate claims for protection. This hearing was also conducted by video conference for the same pandemic related reasons as the first hearing. The applicant, her representative, applicant two, applicant three and four also participated at this hearing. An interpreter was not required in this hearing as all the participants are fluent in English. A copy of the delegate’s decision was supplied by the applicant.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

20. 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.

    Member of the same family unit

21. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse and children of the applicant (who have not turned 18).

22. Spouse is defined in s.5F of the Act and the Tribunal has considered this section of the Act for the purposes of r.1.12. Firstly, the Tribunal is satisfied that the applicant and applicant who are in a married relationship that is valid for the purposes of the Act. The Tribunal also notes that the applicant and applicant two have resided together for many years and have three children. There is no material before the Tribunal which may cast doubt on the existence of their genuine spousal relationship and the delegate also took no issue with the relationship. As such the Tribunal finds that the applicant and applicant two have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing and that they live together.

23. The Tribunal is also satisfied that applicants three to five are the children of the applicant and applicant two. All of the applicant’s children are over 18 years old. R.1.12 sets out that a child who has turned 18 but has not turned 23 is a member of the family unit of the applicant if they are dependent on the applicant or applicant two. The eldest child is also over the age of 23. R.1.12 states that a child who has turned 23 is a member of the family unit if they meet the criteria under paragraph 1.05A(1)(b) of the Regulations. 

24. Paragraph 1.05A(1)(b) of the Regulations states out as follows:

    Dependent

    (1)  Subject to subregulation (2), a person (the first person ) is dependent on another person if:

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

    (ii)  the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

    (2)  A person (the first person ) is dependent on another person for the purposes of an application for:

    (d)  a protection visa; or

    (ea)  a Refugee and Humanitarian (Class XB) visa; or

    (i)  a Temporary Safe Haven (Class UJ) visa;

    if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

25. It is accepted that the applicant’s elderly mother (the sixth named applicant), who resides with the applicant, is a dependent of the applicant.

26. The Tribunal raised the issue of the children potentially not being regarded as dependents of the applicant of applicant two. The applicant’s representative undertook to make further written submissions on this issue following the hearing with respect to the various situations of the children. After these submissions were received it is apparent that applicant three and applicant five are still studying at university and residing with their parents. The Tribunal accepts that they meet the definition of dependents. However, applicant four lives apart from her parents is married and works in another state. The Tribunal finds that she is not a  dependent of the applicant.

27. With respect to applicant four the applicant’s representative subsequently submitted the following:

    Applicant Four
    [The fourth applicant] was born on [date] and is currently [age] years old. She is married
    to [name deleted] and they are living in [another state in Australia]. She recently completed a [degree] and is working as a casual employee at [a workplace].
    [The applicant] and [her spouse] helps [the fourth applicant] to pay for her university fees and supplement her living expenses when she needs.
    It is accepted that [the fourth applicant] is no longer a dependent child of [the applicant] and [her spouse] as defined in clause
    1.2 of the Regulations as she is now married. [The fourth applicant] now presents independent protection claims in her own rights, please see enclosed statutory declaration of [the fourth applicant] declared on 12 October 2021 for details of those claims. [The fourth applicant]’s protection claims largely mirror those of her mother’s as she is part of the same family unit and is subjected to the same risk of persecution at the hands of her uncle’s murderers and their families. Should the Tribunal find that protection is owed to [the applicant], it follows that protection should be owed to [the fourth applicant].

    There is no legislative requirement for [the fourth applicant] to have put forward her own protection claims at the time of application. [The fourth applicant] satisfied the time of application criterion in subclause 866.211(3)(a) of the Regulations that was in existence at the time of the application as she claimed to be a member of the same family unit as the primary applicant for a Protection (subclass 866) visa, namely, her mother [the applicant]. At the time of decision, [the fourth applicant] satisfies subclause 866.221(2) or (4) if the Tribunal determines that she is a person to whom Australia has protection obligations under the Refugee Convention or under the complementary protection provisions. There is nothing to prevent the Tribunal making these findings if is so persuaded.

    Should the Tribunal hold any residual concerns about the above matters, or about any matters
    arising during the hearing, we ask that the Tribunal put those concerns to us in a s 359 notice or
    list the matter for a further hearing to discuss any issues/concerns raised, including taking
    evidence from [the fourth applicant] if necessary. We submit that the claims are so closely aligned with her mother’s that a positive finding is open to the Tribunal ‘on the papers’ at this stage.

1. The Tribunal decided to have a further hearing after the first hearing with respect to applicant four’s claims for protection.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The Tribunal summarised the applicant’s claims for protection as follows makes the following claims with respect to her application for protection:

   ·The applicant’s brother, [Mr B] was an Australian citizen who worked as [an occupation] and raised a family in Melbourne, Australia. He was offered a well paid role in Islamabad, Pakistan and moved his family there which included two children and his wife. His children’s names were [deleted], his wife’s name was [name deleted].

   ·[In] October 2013, [Mr B], his wife and children were all murdered at home in a brutal fashion with their bodies spread throughout bushes in town.

   ·The applicant claims that the mastermind of her brother’s murder was [Mr C] – her paternal uncle’s grandson, and the deceased’s [Mr B’s wife]’s nephew. [Mr B’s wife] and the applicant are sisters-in-law.

   ·[Mr C] confessed to the police that he murdered [Mr B] and his family for money and assets because he intended to apply to receive my sister-in-law’s estate as he is her nephew.

   ·[Mr C] is now in prison and has received a life sentence and initially a death penalty. He has moved between the various courts in the Pakistani judicial hierarchy, with the matter currently in the highest court (Supreme Court) as the applicant’s family attempts to overturn the High Court’s decision to remove the death penalty for his sentence.

   ·In the Pakistani judicial system, the family has the ability to withdraw matters. The applicant claims [Mr C]’s family have been threatening her family in pressuring them to withdraw the matter in Pakistan and have [Mr C] released. The family have legal representatives taking charge of the matter in Pakistan while the family is currently based in Australia.

   ·The applicant fears harm from [Mr C]’s family should she return to Pakistan.

   ·As they are part of one greater family, she fears she cannot relocate to another part of Pakistan.

   ·The applicant is from [North] Pakistan. The applicant claims she also half [ethnic group], and so was [Mr B]. She claims that her family never fitted in in the local village due to their different features.

   ·She believes that the murder of her brother [Mr B] was also a hate crime motivated by the fact that [Mr B] was of a different [ethnicity].

   ·The applicant also fears harm because of she is an educated woman and because she would be a returnee from the West.

3. The applicant agreed with the Tribunal summary of her claims for protection. She added that women are struggling for their basic rights in Pakistan. In the second hearing applicant four set out claims that mirrored the applicant’s claims with respect to her fear of harm with respect to [Mr C]’s family and the law of forgiveness.

   Claim – membership of a particular social group

4. With respect to this matter the Tribunal has reviewed country information with respect to the issue of the criminal forgiveness laws in Pakistan and those laws impact upon that society. A recent article in the newspaper Dawn sets out that the ability of victims to forgive criminally convicted perpetrators is creating a lot of division, coercive and outright threatening behaviour by perpetrators families and that it is common for crimes to be forgiven in return for payment.[1] This is especially the case for wealthy perpetrators in Pakistan which has created a two-tier justice system with those able to afford to buy freedom not subject to justice.[2] The Tribunal finds that victims of crime that are being pressured under these laws to forgive crimes by aggressive perpetrators and who refuse to do so are commonly targeted for further harm.

   [1] Pakistan: How ′blood money′ laws allow murderers to be pardoned | Asia | An in-depth look at news from across the continent | DW | 14.09.2021 (accessed 18 January 2022).

   [2] IFEX, How blood money is worsening impunity and media killings in Pakistan, 22 November 2018, available at (accessed 18 January 2022)

5. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

   … First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

6. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

7. The Tribunal accepts that the immediate family members of the victim who have the ability to forgive a perpetrator of a serious private crime, but refuse to do so, constitute a recognisable group within Pakistan society and that this is a characteristic that distinguishes the group from society at large for reason of the operation of this forgiveness law and the characteristic is not a fear of persecution.

8. The applicant submitted that her elderly mother (the sixth named applicant) is legally entitled to forgive [Mr C] at any stage. She also noted that two of his accomplices have now been released but not due to forgiveness. She is being pressured with respect to her mother by [Mr C]’s immediate family as she was the only sibling living in Pakistan and her mum stayed with her regularly. After the death of her brother she mostly stayed with her. That was when she received direct and indirect threats to ask her mum to forgive [Mr C].

9. The applicant confirmed her family runs a [business] in Pakistan and they own it and their properties. She owns a couple of houses, land and the [business]. [Details about the business deleted]. The Tribunal noted that it may appear she would be considered wealthy in Pakistan. The applicant agreed that is the case. They had cars, servants and other items. She agreed her cousin is currently a [an official]. In Australia her husband owns a [business] and her son (the third named applicant) owns a [business] which is financed and supported by her husband and that he is [studying].

10. The Tribunal accepts that [Mr C] murdered the applicant’s brother on the basis of the independent media reporting of this apparent high-profile event in Pakistan which is before the Tribunal and the subsequent court records of [Mr C]’s prosecution which are contained both on the records of the previous Tribunal case (case number [deleted]) and this reconstituted case. The Tribunal also accepts that members of [Mr C]’s family approached the applicant asking for her mother’s forgiveness. The Tribunal noted that the applicant gave evidence to the previous Tribunal that these were non-threatening approaches. The applicant stated that, as they are all relatives, they cannot be clearly aggressive. [Mr C]’s mother is the applicant’s cousin. All of the family are related in this way to each other. Further that they were unsure how the matter would work out. Eventually she told [Mr C]’s mother that they would let the courts decide. She then threatened her son in a veiled manner. She decided that she did not want to come to a forgiveness agreement with [Mr C]’s family and her immediate family are in agreement with this and they will continue to let the Court decide upon him.

11. The applicant confirmed that two of [Mr C]’s accomplishes were caught and jailed for five years. A third accomplice was recently caught and his trial is pending. The other three accomplices have still not been caught. The Tribunal noted that she had given evidence to the previous Tribunal that some members of their families visited her and stated they have nothing to do with her family and they need their men released. They threatened her and her husband directly. She refused. The Tribunal note that she had previously stated that the accomplices only called her and she only received a threat after leaving for Australia. The applicant stated she had denied direct threats in her interview for entry to Australia as she did not want to be denied her visitor visa. The Tribunal accepts this explanation as reasonable.

12. The applicant gave evidence that [Mr C]’s accomplices are Pashtun and live in the same province. They are very poor people. The Tribunal noted that it may appear implausible that people from a very poor family would threaten a wealthy influential family such as hers. It may appear more plausible that they would beg for forgiveness. The applicant stated that these people’s actions for money is a common thing and they often get away with it. The applicant confirmed that only one associate of [Mr C] is retained in goal. She stated that the family of this associate have not approached her family to ask for forgiveness.  

13. The applicant noted that, since being in Australia, she has been called twice by [Mr C]’s family which were civil conversations and really they just wanted to speak to her mother. The Tribunal noted this may appear contradictory to her previous evidence that they were aggressive to her cousin who is prosecuting the case in Pakistan. The applicant stated this is the case and they do threaten her cousin [Mr D]. He has not given into these threats. He knows them well and has a bodyguard, guns, a successful business and he can protect himself. The applicant confirmed her cousin has not suffered any direct harm in the years she has been in Australia and he has been pursuing the case against [Mr C]. He also has senior connections with the police. However, it is best in Pakistan to guard yourself and so he has not reported any threats formally. The Tribunal noted that this evidence is contradictory to her previous evidence that he had not approached police when in fact he has discussed it with police contacts. The applicant stated it was not done formally, which the Tribunal accepts.

14. The Tribunal noted that the applicant retains significant business interest in Pakistan and has significant family support both in prosecting [Mr C] and running her business interest and in the time she has been away none of these interests or people have been targeted for harm by [Mr C]’s family. The Tribunal noted that this may reflect that in fact [Mr C]’s family are unmotivated to seriously harm her. The applicant agreed that as they are relatives they can’t take it to that level against other relatives. They see each other at all the weddings and funerals. The Tribunal put to the applicant that this expressed reluctance to take action may reflect that there is no real chance she would be seriously harmed. The applicant submitted it is different for her as she is not going to forgive [Mr C], they will not harm her husband’s family as it won’t do anything for them. It is only her and her immediate family that are at risk.

15. The Tribunal then spoke to the applicant’s witnesses. Firstly her cousin [Mr D]. [Mr D] confirmed the applicant runs a [business] in Pakistan and he runs [a] business there. He also confirmed the case details with respect to [Mr C] and his murder of the applicant’s brother and family. He confirmed he was approached by [Mr C]’s father at Court to discuss the matter and the case is now in the Supreme Court with respect to an appeal. He confirmed he has suffered no harm in the time he has been managing the case but has been indirectly threatened by the accomplices. However, he has guards and guns to protect himself.

16. The Tribunal was unable to speak to the applicant’s legal representative in Pakistan who follows and prosecutes the case against [Mr C]. The Tribunal noted there is a written submission from the witness. The applicant’s representative agreed that there is no prejudice to her client as the Tribunal accepts the [Mr C] case occurred with respect to the murder of the applicant’s brother.

17. The applicant stated that her mother’s health is reasonable although she is actively managed by health professionals and her focus is to reduce her stress levels. The applicant confirmed that she thinks [Mr C]’s family will not directly harm her mother. The Tribunal put to the applicant this may indicate they would not also directly harm her. The applicant submitted that they will seek to pressure her to change her mother’s name. The applicant confirmed that if her mother dies it will be up to her and her siblings to decide upon [Mr C]’s fate. They can accept the offers such as money or the marriage of [Mr C]’s mother’s granddaughter to a male relative or continue to refuse forgiveness and risk harm.

18. In the second hearing the Tribunal took evidence from the applicant’s husband. He informed the Tribunal that he had been approached by one of [Mr C]’s accomplice’s family members and by [Mr C]’s family to ask for forgiveness. These approaches were polite but had an undercurrent of threatening meaning. They decided to come to Australia temporarily for a break however when [Mr C]’s family found out they had left the country they became very angry and [Mr D] advised them not to come back for their own safety. The Tribunal also took evidence from the fourth named applicant, who it is accepted is not a dependent of the applicant. The fourth named applicant’s fear of harm largely mirrors those of the applicant. She gave evidence that she fears she will also be subject to persecution for reason of her membership of the same particular social group. As the fourth named applicant is the daughter of the applicant the Tribunal accepts this proposition as reasonable.

19. The Tribunal has carefully considered the evidence with respect to this claim. As the Tribunal has found that the applicant’s brother and family was murdered by [Mr C] the Tribunal has considered the situation with respect to the laws of criminal forgiveness in Pakistan. The Tribunal finds that the applicant and the second named applicant’s evidence and the witness evidence has been consistently given in this matter over a number of hearings and several years. The Tribunal was impressed with the applicant and the fourth named applicant who did not appear to try and embellish their evidence but rather simply recounted in a logical and coherent manner their interactions with [Mr C]’s family since the murder. Given the totality of the evidence before it the Tribunal is satisfied that there is chance, which is not remote, that, should she be required to return to Pakistan, the applicant will be subjected to significant pressure and coercive behaviour to pressure her elderly mother to forgive [Mr C] and or his remaining incarcerated accomplice. The applicant gave evidence that this included implied threats against herself and her husband and son. The Tribunal accepts as reasonably likely that, should the applicant be successful in having the death penalty reimposed upon [Mr C], that such threats may very likely escalate to action including potential serious physical harm and murder. The reason for this serious harm is because of her membership of the particular social group in question. The applicant’s fear of persecution is therefore well-founded. This finding also applies to the fourth named applicant.

20. The Tribunal must also consider whether the applicant and the fourth named applicant can obtain protection in Pakistan. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

21. The Tribunal put to the applicant and the fourth named applicant that the authorities appear to have taken effective action against [Mr C] and his associates in the past and this may also indicate that they would do so again in the future should she require protection. The applicant stated that this is not the case as her brother was a high-profile businessman and it was a high-profile murder in a very safe area. [Mr C] made some stupid errors and the police investigated and easily caught [Mr C] as he was recorded on camera and witnesses also saw him. However, for her and her family it is not the same, if it was easy, then [Mr D] would have asked for protection but he has not and takes his own measures.

22. The fourth named applicant stated that she believes the authorities are very corrupt and will not provide her with protection. The applicant’s representative submitted that if [Mr C] is eventually sentenced to death then revenge may be carried out in a violent way and country information indicates this can occur. Further that DFAT suggests that state protection is limited due to corruption and bad training. Further this case doesn’t lend itself to effective protection as the forgiveness system lends itself to undue pressure being placed upon families and this can lead to violence and state protection would not be available given the police are so poorly funded and trained.

23. With respect to state protection, the latest DFAT report states that Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis). Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.[3]

    [3] DFAT Country Information Report – Pakistan, 25 January 2022 p. 40

1. Further DFAT assesses, with respect to the police in Pakistan that: Police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. The public perception of police is generally poor, although it has reportedly improved in recent years. Police work in Pakistan is poorly paid and dangerous. Individual police officers often augment their salaries with bribes. Terrorist attacks by militant groups frequently target police. A total of 28 police were killed and 26 injured in terrorist attacks and sectarian violence in 2020. There are no centralised or national law enforcement databases or criminal records, which makes it hard to track or locate offenders. Provincial police forces operate independently, with no nationwide coordination or training standards. The UN, Human Rights Watch and Amnesty International have reported widespread human rights violations, including torture and other ill-treatment, arbitrary detention, extrajudicial executions and enforced disappearances by the police, Rangers and Frontier Corps.[4]

   [4] DFAT Country Information Report – Pakistan, 25 January 2022 p. 41

2. The Tribunal considers that, while action has been taken by the authorities against [Mr C] in the past, the extremely poor state of the police force and endemic corruption and human rights violations perpetrated by the police, as set out in the DFAT country information, reflects that that this may be consciously withdrawn for reason of corruption at any time. The Tribunal accepts the applicant’s submission as reasonable that police may consciously withdraw protection to the applicant or engage in arbitrary detention and other ill-treatment of the applicant at any point in time due to the strong potential for corruption by [Mr C]’s family, especially should the death penalty be reimposed, and they seek to place further pressure on the applicant to obtain forgiveness. The Tribunal finds that both the applicant and the fourth named applicant will not be able to access effective protection, and that a real chance of serious harm to them will remain if they return to their home area.

3. The Tribunal must also consider whether there is an area within Pakistan where the real chance of serious harm to the applicant and the fourth named applicant does not exist and if it would be reasonable to expect them to remain in that area. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

4. The Tribunal put to the applicant and the fourth named applicant that it may consider they could safely relocate to a large urban area such as Lahore. Both the applicant and the fourth named applicant submitted that they have a large and extensive family network that would quickly become aware of their return in any area of Pakistan including Lahore. The applicant’s representative submitted that, with respect to relocation it is also not reasonable, given the age and health of the applicant’s mother and that the subjective fear of harm will exacerbate her stress and health.

5. The Tribunal is satisfied that the applicant has extensive business interests in her home area and that both her, her family and the fourth named applicant are well known because of this and also because of the high-profile nature of the crime committed by [Mr C]. The Tribunal accepts that the applicant’s wealth and notoriety, together with her extensive family linkages and in turn the fourth named applicant’s close association with the applicant, would result in the applicant and the fourth named applicant’s return to Pakistan quickly becoming known to [Mr C]’s close relatives and that they would be highly motivated to locate them and would have the financial means and contacts to do so. As such the Tribunal concludes that there is no area in Pakistan where the real chance of serious harm to the applicant and the fourth named applicant does not exist.

6. There is also nothing before the Tribunal to indicate that the applicants have a right to enter and reside in any other country and the Tribunal finds this to be the case.

   Conclusions

7. Although considered extensively during the hearings, it is not necessary for the Tribunal to set out its conclusions with respect to the other claims for protection made out by the applicant or the fourth named applicant in these reasons or its conclusions.

8. For the reasons given above the Tribunal is satisfied that the first named applicant and the fourth named applicant are persons in respect of whom Australia has protection obligations. Therefore the first named applicant and the fourth named applicant satisfy the criterion set out in s.36(2)(a).

9. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second, third, fifth and sixth named applicants are the husband, dependent children and dependent elderly mother of the first named applicant and are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

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

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

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

    Paul Noonan
    Member