2015462 (Refugee)

2015462 (Refugee) [2024] AATA 3115 (30 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Madhukar Naiker (MARN: 0601856)
CASE NUMBER:  2015462
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Bridget Cullen
DATE:30 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 30 April 2024 at 9.54am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – victims of domestic violence – fears harm from brothers – being excluded from her own property and denied access to her own assets – membership of the particular social group – a single woman – women in Pakistan – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 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 dependant.
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 12 October 2020 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a citizen of Pakistan, applied for the visa on 15 August 2017. The delegate refused to grant the visa on the basis that the Delegate found that the Applicant was not a person to whom Australia had protection obligations.
The Applicant appeared before the Tribunal on 22 April 2024 at 10.00am to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s sister, [Ms A], and brother-in-law ([Ms A]’s husband), [Mr B].
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Applicant was represented in relation to the review. The representative attended the hearing. Helpfully, the representative provided the Tribunal with written submissions in advance of the hearing, including submissions in relation to the relevant country information for Pakistan.
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 Applicant is a person in respect of whom Australia has protection obligations. The Applicant, a single unmarried woman, claims to have a well-founded fear of persecution should she return to Pakistan on the basis of her membership of the particular social group of women in Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Applicant provided the Tribunal with a copy of the Delegate’s decision record, in conjunction with this review.
Identity and Family Composition
The Delegate was satisfied in relation to the Applicant’s identity, and also in relation to her family composition. The Applicant provided the Department with her original Pakistani Passport, National Identity Card, and NADRA Family Registration Certificate. On the basis of these documents and the Applicant’s oral evidence the Tribunal is satisfied she is a citizen of Pakistan. The Tribunal assesses her claims against Pakistan as her country of nationality and receiving country.
The Tribunal also accepts that the Applicant’s family composition is as claimed. The Applicant is single, having never been married, and one of six siblings. She has 3 sisters – 2 reside in Pakistan and one, [Ms A], is now an Australian citizen. The Applicant’s two brothers, [Mr C] and [Mr D], reside in Pakistan. The Applicant’s father died when she was aged [age], in 1994.
The Applicant travelled to Australia with her mother in 2017, on a visitor visa, to attend her sister [Ms A]’s citizenship ceremony. Shortly after arriving in Australia, the Applicant’s mother died. As such, the Applicant does not have the support of either her mother or father were she to return to Pakistan.
Applicant’s claims
The Applicant claims to fear death, should she return to Pakistan, at the hands of her own brothers, [Mr C] and [Mr D]. The reason for her fear relates to her having, by relocating to Australia, effectively spurned [Mr C]’s and [Mr D]’s desire for her to enter a forced, arranged marriage to a much older man.
The Applicant had established a successful [business] in Pakistan, having completed [a] course. She was able to acquire two properties – a rental investment property, and land. The Applicant provided documentary evidence of her financial assets in Pakistan to the Department, including her property, [business], and bank statements. This evidence was accepted by the delegate, and there is no reason for the Tribunal to reach a different conclusion in relation to the Applicant’s claimed pool of assets.
Following the death of her father, the Applicant’s brothers took over management of all of the family assets, including those belonging to the Applicant. The Applicant explained that her brothers had gradually moved their own families into these properties, effectively excluded her from her own property. On the land she acquired, one of her brothers has built a house, and the other brother occupies her rental investment property. The Applicant, prior to leaving Pakistan, was living with her elderly mother, in a property owned by her Australian brother-in-law, [Mr B].
[Mr B]’s evidence at the hearing was that he provided substantial financial assistance to the Applicant and her mother (also his wife’s mother), while they were in Pakistan. [Mr B] has a wife to support in Australia (and now a young child), and the Tribunal accepts that he provided the Applicant with assistance as her brothers were not able or willing to do so. The Tribunal also accepts that this has been difficult for him to, and would be very challenging on a sustained basis were the Applicant to return to Pakistan.
The Applicant’s sister, [Ms A], gave evidence at the hearing that the Applicant was treated as a slave by their brothers, who she described as lazy. The Tribunal accepts that [Mr B] assisted with the Applicant’s living expenses while in Pakistan, despite her being a successful [occupation]. The documentary evidence before the Tribunal corroborates both the claims that [Mr B] did provide financial support to the Applicant and her mother, and also that they resided together in a house owned by [Mr B] in Islamabad.
The Tribunal accepts that [Mr B] supported the Applicant and finds that the reason it was necessary for him to do so was because the Applicant’s own brothers had acted in a manner so as to deprive her access to her own assets. The Tribunal observes that this sort of coercive behaviour is a form of domestic abuse, that would have been difficult to address in a patriarchal environment whereby the Applicant’s brothers had simply taken over her affairs.
At hearing, the Applicant explained that over time, the threats made against her by [Mr C] and [Mr D] had been escalating in severity, to the point where they have as recently as six to seven months ago told one of her sisters [remaining] in Pakistan that they will kill her [the Applicant] if she returns.
A central aspect of the Applicant’s claims relates to an episode that transpired on 7 April 2016, when the Applicant’s brothers threatened her, and assaulted her. The delegate has address this in the decision record:
The applicant provided a poor quality translation of the police report. The police report contains information that has not been included in the applicant’s statement of claims. For example, the police report also states the applicant’s mother was beaten, and that upon her initial refusal of marriage, the applicant and her mother were expelled from their home by her brothers and they returned to live in Gujrat. The police report also states that the brothers had an agreement with this older man that the applicant would marry him.
I note the police complaint was filed in Gujrat and the doctor is also based in Gujrat; however the applicant’s residential history show her residence as being in Islamabad. I consider it significant that the applicant’s statement of claims did not mention that her brother’s had assaulted her mother or that they had been expelled from their home. An assault on her elderly mother I consider would be a traumatic experience and one that a person would not readily forget. The applicant did not report this at the protection visa interview either. I note DFAT reporting which states document fraud in Pakistan is widespread and easy to procure.
The Tribunal accepts that there are general integrity concerns with documents obtained in Pakistan, but also observes that the Applicant is entitled to the benefit of the doubt, unless there is a basis on which the Tribunal could find that the police report gives rise to integrity concerns. The Tribunal finds that the document supports the Applicant’s consistent account of events, and that the fact that it is of poor quality is not, in and of itself, an integrity concern.
The Applicant has explained that this assault took place at her sister’s place in Gujrat, which was therefore the natural place to report the incident. The Tribunal accepts this explanation, and also accepts that, having provided the police report, it was not then necessary for the Applicant to comment further on the matters contained therein. The Tribunal accepts that the Applicant was focussed on her need for protection, and left the report to speak for itself in relation to the assault on her mother.
The Applicant’s sister’s and brother-in-law’s ([Ms A] and [Mr B]) evidence before the Tribunal was persuasive in relation to a further episode said to have transpired in January of 2019. [Ms A] had travelled to Gujrat, Pakistan following her mother’s death, to engage in prayer ceremonies. At this time, she was confronted by her (and the Applicant’s brothers), [Mr C] and [Mr D], demanding to know why the Applicant had not returned.
This evidence, by [Ms A], was largely dismissed by the delegate. The Tribunal thinks that it is credible, as it is supported by the timing of the Applicant’s mother’s death, as well as travel records. Further, it was corroborated by [Mr B]’s evidence, who explained the trauma that this caused [Ms A], and to him, as her husband. He explained that he had to travel to Pakistan to “rescue” [Ms A] from these difficulties created in the family as a consequence of the Applicant having remained in Australia rather than returning home. [Ms A] was injured, but did not report the matter to police, as she did not want to cause further trouble.
[Ms A] and [Mr B] gave evidence that following this traumatising episode, they have decided it is too unsafe to return to Pakistan. They would love to visit their family, especially as they now have a child, but have instead tried to pursue (unsuccessfully) visitor visas for their family members.
The delegate observed that there was some evidence that the Applicant remained in communication with her brothers visa [social media]. This, in part, was the basis for the delegate concluding that the Applicant’s family (including her brothers) is loving and supportive. The Tribunal considers the mere fact that the Applicant may have remained in contact with her brothers, in circumstances where she also has sisters remaining in Pakistan, to be hardly surprising. Persons who are subjected to the complex dynamics surrounding family violence do not always instantly stop speaking with and engaging with their family member perpetrators – this dynamic, where victim and perpetrator remain in contact through extended networks, is a key reason that eradicating domestic violence is challenging. The Tribunal accepts that by maintaining some contact – “keeping the peace” – is a strategy that some victims of domestic violence deploy in order to avoid issues.
The Applicant explained that she primarily used her social media accounts in order to study. The Tribunal does not consider that, in these circumstances, where the Applicant has been subjected to years of financial control such that she subsisted on money provided by [Mr B], is not demonstrative of a positive and loving family dynamic. This is particularly so in view of the country information for Pakistan, traversed below.
The Tribunal accepts that the Applicant, her mother, and [Ms A], have all been assaulted by [Mr C] and [Mr D], as described. The Tribunal accepts that [Mr C] and [Mr D] have exerted pressure on the Applicant to marry a much older friend of theirs. The Tribunal accepts that the Applicant’s brothers have coercively taken control of her property and assets.
Country Information
DFAT’s most recent ‘Country Information Report’ on Pakistan, published in January 2022, contains the following:
Women
Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.
Article 25 (2) of the Constitution prohibits ‘discrimination on the basis of sex,’ subject to a caveat enabling the state to make laws to ’protect women and children.’ Nevertheless, discriminatory laws exist: a man can legally seek a divorce at any time, while a woman cannot; the legal marriage age for men is 18, while for women it is 16 (except in Sindh where it is 18); and marital rape is not criminalised. There has been significant legislative progress on women’s rights at the provincial and federal levels in recent years. Laws against domestic violence in Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa, as well as federal laws, have been introduced that criminalise honour killings and acid attacks. The enforcement and effectiveness of these laws varies. Some, such as the acid attack law, have been very effective: once common, acid attacks have decreased by about 80 per cent since 2014, according to in-country sources.
Women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) restricts many women’s personal, social and economic activities outside the home. While women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom, conservative rural communities are much stricter. There are reports of widespread sexual harassment of women and girls in public places, schools and universities. Some, mostly wealthy, Pakistani women have attained senior positions in public life, but their experience is not representative of the general population.
Rates of gender-based violence are high. The Pakistan Demographic and Health Survey 2017-18 found 27.6 per cent of ever-partnered women aged 15-49 had experienced physical violence, mostly at the hands of their husbands. NGOs claim the actual prevalence is much higher. NGOs and government officials report domestic violence has risen sharply during COVID-19.
Gender-based violence often goes unreported due to stigma and a lack of privacy for victims, even when they are wealthy and well-connected. Victims of rape often avoid reporting for fear they will be blamed or killed for ‘dishonouring’ their family, and because attending police stations may put them at risk of further violence. Extremely low conviction rates also discourage reporting of rape and other forms of GBV, as does a lack of female police officers. Domestic violence is commonly seen as a private family issue, and police are often reluctant to intervene. Federal and provincial governments have tried to improve official responses to gender-based violence, including through establishing GBV courts and women’s police stations, available in some major cities. In May 2021, police opened a Gender Protection Unit with a 24-hour hotline in Islamabad, which handled more than 500 complaints in its first three months.
Without support it is extremely difficult for a woman to relocate to escape an abusive relationship. Women who leave their families face physical risk, stigma and steep economic barriers. State-run women’s shelters (darul aman) require a court order to enter and leave, and are described as having ‘prison-like’ conditions. Private and NGO-run shelters exist, but they are unable to meet demand. Families often pressure victims to return to their abusers; in some cases victims are lured into returning and are killed. In Punjab it is possible to obtain a restraining order under the Punjab Protection of Women against Violence Act, 2016. Elsewhere in Pakistan a judge may issue a ‘protection order’ (denial of bail) to protect any victim or witness of a crime, but these are rarely granted.
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.
Forced and underage marriage is a widespread problem in Pakistan. Religious minorities are at particular risk. A frequently-quoted estimate is that about 1,000 forced marriages take place in Pakistan each year. While the marriage age for girls is technically 16, Islamic jurisprudence provides for girls to be married once they reach puberty. Girls as young as 12 have been abducted, raped, threatened with violence and, in some cases, forcibly converted to Islam. In tribal areas, forced marriages are sometimes ordered by traditional jirga councils under a custom known as badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men.
Female journalists, activists and opposition politicians are frequently subjected to online harassment, including threats of physical and sexual violence, on the basis of their sex. Women who participate in the annual Aurat (Women’s) March have been condemned for promoting ‘vulgar’ behaviour and threatened with violence. In 2020, doctored photos of women holding placards deemed insulting to Islam were circulated online, drawing threats and hate speech.
Militant groups such as the TTP have attacked female teachers and school students due to their ideological opposition to female education. The 2012 shooting of prominent female education activist Malala Yousafzai while she was travelling on a school bus in Swat was a direct response to a series of media interviews in which she argued that girls had a right to education and condemned the TTP. Attacks on girls’ schools continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan. A significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.
DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.
…
State Protection
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.
…
According to the International Crisis Group, the number of police in Pakistan increased from 220,000 to 430,000 over the decade to 2015. In 2018, the total police force was estimated at 530,000. 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.
…
Internal Relocation
Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate. For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.

The 2022 United States Department of State Country Report on Human Rights Practices for Pakistan states:
Women faced legal and economic discrimination. The law prohibits discrimination based on sex, but authorities did not enforce it. Women also faced discrimination in employment, family law, property law, and the judicial system. Family law provides protection for women in cases of divorce, including requirements for maintenance, and sets clear guidelines for custody of children and their maintenance. Many women were unaware of these legal protections or were unable to obtain legal counsel to enforce them. Divorced women often were left with no means of support, as their families ostracized them. Women are legally free to marry without family consent, but society frequently ostracized women who did so, or they risked becoming victims of so-called honor crimes.
Media sources[1] indicate that women residing outside of Pakistan have been tricked into returning to Pakistan. This has involved someone lying to the woman about the health of another female relative, and then abandoning them without the support of either their own family or in-laws upon their return.
[1] 'Safe to Return?', Siddiqui, N., Ismail, S., Allen, M., South Manchester Law Centre, Manchester Metropolitan University, January 2008, p. 131
The November 2022 United Kingdom Home Office Country Policy and Information Note, Pakistan: Women fearing gender-based violence notes that although information on the challenges faced by single women in Pakistan is limited, sources indicate that living alone for women may be seen as a sign of dishonour for their families. Remaining single is considered socially unacceptable and perceived as non-compliant with the cultural expectation of marriage.
An 18 June 2022 media source[2] refers to the difficulties that single women encounter trying to rent a home in Pakistan:
Renting to single, unmarried women in Pakistan is too risky, [landlords] claimed, saying they only rented to 'families'. The concept of a family is a strange one, as far as rentals go in Pakistan. What they mean by family isn't the stereotypical four member nuclear family, nor the raucous and aggressively passionate joint family system. In the context of a rental, a family means at least one man, if you're a woman. It doesn't matter if they are your father, your husband, or even your 15-year-old brother. Family is family, and in Pakistan, family is men.
…
The idea of a single woman renting a house is alarming to landlords for many reasons, all of them equally as sexist. They live in fear of the woman turning the place into a den of 'sin,' God only knows how many men she will bring back to her place. Perhaps she will throw loud and destructive parties, where alcohol flows freely and drugs are served as hors d'oeuvres. At any rate, a single woman is too big a liability and cannot be trusted to live alone under the roof of the landlord.
[2] Muzaffar K, The Friday Times, 'They Assumed I Ran A Brothel': How Women Wanting To Live Alone Are Treated In Pakistan’, 18 June 2022.
Although the Applicant did not describe the treatment of her by her brothers using the term “domestic violence”, the Tribunal thinks that it does fall within those parameters. Domestic violence includes the use of intimidation and fear as a means of control, including in relation to financial matters.
In view of the above information, the Tribunal accepts that the Applicant has experienced family violence in Pakistan perpetrated by her brothers, for many years prior to her travelling to Australia. The Tribunal further accepts that if the Applicant returns to her home in Islamabad, Pakistan, or any other part of Pakistan, that there is a real chance the Applicant’s brothers will again be violent towards her.
Further, the Tribunal thinks it highly likely that the Applicant would be refused access to her own property on return to Pakistan, which would render her homeless, particularly following the death of her mother. As a single woman, the Tribunal accepts that the Applicant’s brothers would exert pressure on her, and her sisters in Pakistan, to enter into an arranged marriage with their older friend, by excluding the Applicant from housing and by declining to provide support to her in their own homes.
In making this assessment, the Tribunal notes DFAT’s advice set out above - that women and girls in Pakistan face a high level of official discrimination and a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. The DFAT advice is consistent with other reliable sources of country information as set out above.
The controlling and violent behaviour that the Applicant has experienced by her brothers is properly characterised as family violence, a complex pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. Evidence establishes that the overwhelming majority of family violence is perpetrated by men against women, with the most significant risk factor for experiencing family violence being a woman.[3]
[3] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1.
Country information indicates that Pakistan is a patriarchal society in which gender disparity is widespread and extends to political and state institutions.[4]
[4] Gender discrimination worsened poverty in Pakistan’, ANI News, 11 December 2021; ‘Country Policy and Information Note - Pakistan: Women fearing gender-based violence’, UK Home Office, 16 February 2020, p. 7.
In sum the Tribunal is satisfied that the Applicant faces a real chance of being excluded from her own property and denied access to her own assets, by being refused accommodation with her own family in Pakistan; by being pressured into an unsuitable and exploitative marriage; and by possibly being killed or seriously physically harmed by her brothers should she return to Pakistan.
The Tribunal is satisfied that the harms the Applicant will face in Pakistan are serious harms. The Tribunal accepts the violence perpetrated upon the Applicant by her brothers is gender-based and directed at her because she is a woman, who has resisted their desires to acquiesce to their financial demands in a formal way by transferring ownership of her property to them, and in refusing to enter into an arranged marriage.
The Tribunal finds, based upon the available country information, that gender-based harm is pervasive in Pakistan. Further, the Tribunal finds that the country information, including the most recent DFAT Country Information Report for Pakistan[5] indicates that state protection is not effective for women in Pakistan. Rather DFAT assesses that the inadequacy of state protection from gender-based violence for women and girls in Pakistan itself constitutes a high level of official discrimination. In view of the DFAT Country Information, the Tribunal finds that effective state protection is not available to the Applicant.
[5] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100.
For these reasons, the Tribunal is satisfied that the harm the Applicant fears from her brothers involves systematic and discriminatory conduct directed at her for the essential and significant reason of her gender and her membership of the particular social group ‘women in Pakistan’. The Tribunal considers that the group of ‘women in Pakistan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
The Tribunal is therefore satisfied the Applicant has a well-founded fear of persecution in Pakistan as defined by s.5J of the Act.
Section 36(3)
Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) exclusion will not apply. The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.
There is no indication before the Tribunal that the Applicant has a right to enter and reside in any other country. The Tribunal therefore finds that she is not excluded from Australia’s protection obligations by s 36(3).
Conclusion
For the reasons given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
Bridget Cullen
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.
…

[2024] AATA 3115

30 April 2024

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness

Remedies