2405605 (Refugee) - [2025] ARTA 1387

2405605 (Refugee) [2025] ARTA 1387 (5 June 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Muhammad Raza Ali
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2405605
Tribunal:General Member Rosa Gagliardi
Date:5 June 2025

Place:Australian Capital Territory
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)that the first named applicant meets s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(a) also.

Statement made on 05 June 2025 at 11:14am
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – Pashtun women subjected to family violence – deprived of ability to continue education – domestic violence – husband married others – jirga intervention – lost custody of son – son’s whereabouts unknown – filed for divorce on the grounds of cruelty – at risk of honour killings – at risk of harm as a single mother – system based on patriarchy – serious mental health conditions from losing son – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56,65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Pakistan (a matter the Tribunal accepts) applied for the visas on 23 November 2023.
The delegate refused to grant the visas on the basis that the applicants had not responded to requests for further information under s.56 of the Migration Act and on the evidence before them, it was found the applicants did not meet the protection requirements.
The applicants appeared before the Tribunal on 15 May 2025 to give evidence and present arguments. The applicant’s brother, [Brother A], also gave evidence at the hearing. The Tribunal did not take evidence from the second-named applicant who is a minor. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
NB: The Tribunal uses the terms ‘first-named visa applicant’ and ‘the applicant’ interchangeably in this decision for ease of reference.
Evidence before the Department
In her application, the applicant explained that her husband had married another woman in 2010 and that she left the relationship due to his physical and violent behaviour. She lived with different relatives for a while but in 2012 was forced by relatives (the Pashtun traditional elders) to return to her husband’s family. During this time, she was always living at their mercy and a fear of getting killed for having left him for two years in 2010-2012. She wrote, “As I was returned to his parent’s home back in 2012 after jirga decision it was considered to be my last mistake as I damaged their family honor. Honor killings in such cases are very common in northern part of Pakistan. As I have had a history of domestic violence and jirga decision and knowing the violent behaviour I am afraid to go back with my daughter”.
In a separate statement to the Department the applicant explained that she left her husband’s house because of his physical and violent behaviour. In 2012 she was forced to return to his family’s household, but the jirga (traditional elders) do not listen to what women have to say. The police refuse to file complaints if there has been a decision of the Jirga as they are often powerful and tribal people who have control in local politics. She filed for khula (right of a woman to divorce her husband) in court. This type of divorce is considered a major insult in Pashtun culture and often women who initiate such proceedings are subjected to violent behaviour from their husband’s family and the Pashtun community generally. As a Sunni Muslim, her husband was against the khula law and YouTube evidence shows that Sunni scholars are against this law.
After finding out about the initiation of court proceedings the applicant’s husband contacted her and her brother demanding she withdraw the khula and threatened the applicant that if she did not do so she had best be prepared for the consequences and that he would never sign divorce papers. He also threatened the applicant’s brother and his family stating he would rather kill them than sign the divorce papers. He had already threatened to kill the applicant on several occasions over the years. She never had her own mobile phone due to his controlling behaviour. She had lived in fear of being killed because she had dared to leave his household over 2010 to 2012. If she returns to Pakistan, the consequences could be extreme.
Evidence before the Tribunal
In a further statement dated 29 April 2025, the applicant has set out her claims in detail explaining that she had two children of the marriage with her husband. Her first child was born on [date] (her son) and her daughter was born on [date] in [City 1], Mansehra District. Her husband is also her cousin, and his family now lives in Battagram, Mansehra District while her parents live in [City 1].
The applicant wrote that she studied until grade 10 as girls are married at an early age according to local traditions. Her uncle had asked for her hand for his son when she was in grade 9 but would not permit her study further.
Her husband used to trade in [goods] between [Country 1] and Pakistan, travelling to [Country 1] frequently. He also wanted to set up [Business 1] in his village and did so shortly after their marriage. After completing grade 10 the applicant had responsibilities towards her grandmother who was paralysed and required extensive support, however the applicant was required to go and live with her husband and family where they were abusive and would emotionally and mentally torture her if she called out his adverse conduct. After the birth of their son in [year] the applicant’s husband’s attitude grew worse. If she pointed this out, he threatened he would marry another woman. She was going through post-natal stress and was not helped by anyone in his family. She relied on her family for her basic needs.
The applicant’s husband continued to physically and mentally abuse her and after the birth of their daughter in [date] he assaulted her for not doing enough for the household. Her husband on starting [Business 1] as a business owner employed [an Occupation 1] and embarked on a relationship with her and later married her and maintained her in a separate household. When she asked why he had married in secret, her husband hit her in the face and told her he could do whatever he wanted. His family were supportive of his marriage and his abusive conduct towards her.
The applicant fled living with different relatives. In around November 2011, the applicant’s husband’s family approached her family to conduct a jirga with the Pashtun elders to resolve the matter but instead of resolving it, they told her that she had been the one to breach Pashtun values, leaving her husband’s house, and giving rise to rebellious conduct. The jirga decided she had ruined her husband’s family and determined that as a penalty her sister ought to marry her husband’s brother.
The applicant was forced to return to her husband’s family’s home without her consent. She stayed at that home until her brother told her in June 2022 that her husband had married another woman in [Country 1]. The applicant confronted her husband’s family about this third marriage, feeling aggrieved he had not taken care of her and their children in Pakistan. His family did not support the applicant, rather abusing and pushing her out of the house. They told her not to say anything about it and confirmed they would return to their home area, Battagram, and would hold a jirga about the matter later. After a severe beating by her husband, the applicant was forced out of the house. She wanted to take her children, but her husband’s brother was holding her son and told her he would not go with her. She left the house without her belongings and son, only taking their daughter. The applicant returned to her parent’s home and her father offered to go to speak to her husband’s family, but the house was boarded up and they had moved to Battagram.
The disappearance of her husband with her son left the applicant traumatised and her father started to ask about their whereabouts and discovered that her son had been left with her husband’s family in Battagram, and that the applicant’s husband had returned to [Country 1]. She called her brother, [Brother A], from Australia to go to Pakistan for support. There was no indication, however, of her son’s whereabouts so her brother travelled to [Country 1] to speak to the applicant’s husband but was threatened and he returned to Australia on 8 August 2022.
In January 2023 jirga members approached the applicant’s father to hold a jirga to resolve the issue about the applicant having left her husband’s house during 2010-2012 and the elders stated they would confirm the previous decision that the applicant’s younger sister ought to marry her husband’s younger brother. Her father stated that any agreement would be on the condition that the applicant’s son be returned to her, but they stated they would only accept the accord when her younger sister married her husband’s brother, which she has never done.
The applicant filed for khula on the grounds of cruelty (the right of a woman to divorce her husband) in [a] family court [in] February 2023. On finding out about her actions, her husband demanded she withdraw the khula. Her case in the [family court] has not yet been concluded.
The authorities in Pakistan would not protect the applicant because they are corrupt and would not support her. The fact that the divorce is still pending shows that her husband and his family, together with the jirga members have influenced the process. The applicant seeks protection because her return would place her parents in an extremely vulnerable situation along with her sister who has no fault in the matter, but will be subjected to unacceptable tribal values.
Material submitted to the Tribunal
·Submission by the representative advising the applicant had missed the request for further information dated 15 January 2024, sent by the Department due to her inability to keep track of emails, leading to her inability to respond and the ultimate refusal of the visa. The submission explains the applicant came on a Visitor visa on 22 August 2023, to stay with her brother, [Brother A] and to seek refuge from the harm suffered in Pakistan.
·Statement from the applicant’s brother, [Brother A], confirming the applicant’s account of events in Pakistan and that he went to find the applicant’s husband to seek an explanation regarding his third marriage and the whereabouts of the applicant’s [son].
·Originals (in Urdu) and translations of proceedings in the [family court] with the applicant filing suits for:
(a) Dissolution of marriage on the basis of cruelty
(b) Recovery of dowery
(c) Recovery of maintenance x 2
The facts of the case as delineated in the court written record are that:
-the defendant’s (the applicant’s husband’s) behaviour after the marriage involved “beating, braw and quarrel” and the defendant often deserted the plaintiff (the applicant) after beating but the plaintiff continued to live with defendant “just for the sake of her modesty”.
-The parties had two children, the daughter living with the plaintiff and son residing with the defendant.
-After 4/5 years of marriage the defendant without the consent and permission of the plaintiff contracted second marriage with a lady who died some three years earlier from [Medical condition 1].
-The defendant was residing in [Country 1] in the past 10/11 years and entered a third marriage and has not paid maintenance and that the plaintiff was totally at the mercy of her parents who were bearing all the expenses.
-Due to the cruel behaviour of the defendant, the applicant after the desertion remained with her parents for two and a half years but was later forced to cohabitate with the defendant on the basis of the jirga decision.
-In June 2022 the defendant returned and started “excessive oppression, tyranny and cruelty on the plaintiff” but for the sake of the children she tolerated the cruel behaviour.
-[In] June 2022 the defendant ousted the plaintiff after severe beating and since then the plaintiff is residing in the house of her parents.
The list of witnesses called by the applicant include the elders of the jirga.
The court documents reflect that the applicant’s counsel submitted a summons via [social media] for the defendant who was in [Country 1].
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for a refugee under s.36(2)) or in the alternative whether she meets the complementary protection criteria, being s.36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal found the applicant to be a credible witness. Her account has been mirrored across the more detailed evidence she has provided the Tribunal and is internally consistent. Furthermore, the court documentation also supports the applicant’s claims to a considerable degree. The Tribunal has also placed weight on the evidence given by [Brother A], the applicant’s brother, at hearing confirming he had travelled from Australia to [Country 1] to confront the applicant’s husband but that he was threatened by him and returned without news of the applicant’s son. The Tribunal also accepts that the applicant at the time of application was not aware that the Department had requested further information, leaving her claims unsupported.
The applicant is claiming to be a member of the following particular social groups:
-Pashtun woman subject of family violence in Pakistan
-Woman whose husband has deprived of her of an ability to raise her son
-Woman who is seen as rebellious in not fulfilling the requirements of the jirga’s resolution
-Woman who has defied cultural expectations and taken legal action against her husband
-Woman who is subject of honour killing as she is seen to have defiled her in-laws’ family by leaving her husband’s household
-Woman deprived of ability to continue her education
The position of women in Pakistan
It has been considered that:
In Pakistan, husbands are responsible for regulating and restricting their wives' and daughters' movements and activities to protect the family's reputation. A gendered society divides people into male breadwinners and female housekeepers and reproducers. Thus, our society becomes increasingly skewed and unequal. Many women do not know what their basic human rights are, let alone their legal rights, and even fewer know how to exercise their rights. Some women in the countryside labour on farms, but their efforts are rarely recognized or rewarded. Nonetheless, even in metropolitan areas, women in Pakistan endure severe restrictions that lower her social standing. Because of this, girls have little choice but to rely on the men, who limit their autonomy and fortify the fogy culture. (Ali, 2001).[1]
[1] ‘Judicial Inefficiencies and Legal Inconsistencies in Addressing Honour Killings: A Human Rights Analysis of Pakistan’s Legal Framework’, Ahmad Talha, Dalian Maritime University, School of Law,
In terms of women generally, the Tribunal notes that the country information by Australia’s Department of Foreign Affairs and Trade shows:
Pakistan has one of the worst records for gender equality in the word, according to the 2024 World Economic Forum’s Global Gender Gap Report, which ranked Pakistan 145 out of 146 countries for female economic participation and opportunity, educational attainment, health and survival and political empowerment (Sudan ranked the lowest, countries like Afghanistan and Yemen were not included) …
Women’s participation in Pakistani society can be curtailed depending on their cultural, social and economic circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) in some areas of Pakistan restricts the personal, social and economic activities of women outside the home. While in many instances, women in cities such as Lahore, Karachi and Islamabad enjoy relative freedom of movement, women living in conservative rural communities are sometimes subject to greater restrictions. Sexual harassment of women and girls in public places, schools and universities is common. While some, mostly wealthy, Pakistani women have attained senior positions in public life, their experiences are often no representative of the general female population….
Discriminatory marriage and divorce laws and regulations exist based solely on gender. Examples include: men being legally allowed to seek a divorce at any time, while women cannot, the legal marriage age for men is 18 but 16 for women (except in Sindh where it is 18); and marital rape is not criminalised. In-country sources told DFAT: women often received inequitable outcomes in the family court, divorce cases frequently proceeded very slowly (except in Punjab, where divorce cases were regularly expedited), few pro bono lawyers were available; and men sometimes obstructed women’s custody rights during the legal process. Women experience significant cultural stigma in relation to divorce, often seen as bringing shame on the family. Women face significant social pressure not to remarry but are also often abused by their husbands’ and own families for their choice to divorce.[2]
The jirga system
[2] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, country-information-report-pakistan.pdf.

The Tribunal found the applicant’s depiction of the involvement of the jirga in her dispute with her former husband and his family credible. The operations of the jirga as claimed by the applicant are supported by country information.
The Human Rights Commission in 2001 observed that “the speed with which the jirga system is expanding makes the need for strengthening the justice system all the more pressing”.[3] Amnesty International has considered the report which refers to a tribal council of elders in June 2002 ‘sentencing’ a 30-year-old woman, to being gang raped in ‘punishment’ for her younger brother’s alleged ‘illicit affair’ with a girl from another tribe, the Mastoi. Following public outcry an official enquiry confirmed assertions by the woman that the story of the ‘illicit affair’ was itself concocted to cover up another earlier sexual abuse where three of men of the Mastoi tribe were found to have sodomized the woman’s younger 12-year-old brother, Shakoor.[4]
[3] ‘The tribal justice system’ Amnesty International, August 2002 asa330242002en.pdf.
[4] Ibid.
When Shakoor threatened to tell his family about the rape (which a medical examination confirmed), the tribesmen handed him over to the local police detained the boy. The Mastoi then publicly alleged that Shakoor had had an ‘illicit affair’ with an older woman of the Mastoi tribe and summoned a jirga, a council of tribal elders to deal with the alleged ‘affair’. The ‘trial’ of the woman by jirga then took place on 22 June 2002, in the presence of several hundred local residents none of whom took any action to prevent the rape. The woman had appealed to all those present for mercy, but no one dared object to the council’s ‘verdict’. Given the wide local participation, it must be assumed that local police were aware of the event as it unfolded. However, they did nothing to stop it and to protect the victim.[5]
[5] ‘The tribal justice system’ Amnesty International, August 2002, asa330242002en.pdf.
Further:
Interventions of tribal councils or jirgas affecting the rights to life and security of the person of men and women are not rare in Pakistan and the state’s acquiescence or connivance in such practices has frequently been reported.
In the context of studying human rights violations perpetrated against girls and women in the name of ‘honour’, Amnesty International learned about the widely applied tribal justice system in Pakistan.[6]
[6] Ibid.
A recent study discusses the judicial perspectives on the problem of honour killing:
It is important to note that honour killing in Pakistan falls into two distinct categories: those that are appropriately administered under the courts, and those that are administered through the traditional Jirga system, before examining the judicial approach. Even after some fair precedents have been created, the judicial system is seen as weak and lenient when investigating cases of honour killing, and is often seen as supporting fogy culture and gender discrimination. The judicial system shares the same thinking as traditional culture, viewing honour killing as a social crime rather than a legal one. (Idriss, 2010). It is obvious that the organisation and formation of tribal council are not based on any religious or legal principles, and that the decisions made by the two tribal leaders in most honour killing instances are completely skewed and in favour of certain groups. The traditional customary norms and laws that are still implemented and reflect the beliefs of traditional communities provide tribal courts their authority and influence in the face of an unstable administration and an absence of the rule of law. Like the feudal era, the multiplex judicial system is rife with patriarchy; in the Jirga system, women are routinely silenced. Despite this, many people prefer and pursue the Jirga system over the legal courts because they see it as more expedient and accessible. (Merry, 2006).[7]
[7]
The connectivity between the jirga and concepts of honour killings first identified by Amnesty International has, unfortunately, continued over time.
Responding to the so-called “honour killing” of a woman in Kohistan, Pakistan, who was ordered to be killed by a jirga (tribal council) due to images of her going viral, Nadia Rahman, Amnesty International’s Deputy Regional Director for research in South Asia, said:
“The continued failure of the Government of Pakistan to curb the extra-legal power of jirgas or tribal councils to run parallel legal systems perpetuating patriarchal violence with impunity is extremely concerning. Previously, the Supreme Court of Pakistan has ruled that the operation of these tribal councils is contrary to Pakistan’s international commitments under the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention on the Elimination of All Forms of Discrimination Against Women.” [8]
[8] ‘Pakistan: Authorities must end impunity of tribal councils as so-called “honour killings” continue unabated”, Amnesty International, 30 November 2023, Pakistan: Authorities must end impunity of tribal councils as so-called "honour killings" continue unabated - Amnesty International.
Nadia Rahman has stated, “While repeated so-called “honour killings” have resulted in legislative amendments and societal outrage in the country, they remain unabated. It is not enough to arrest people after such attacks take place. The authorities must end impunity for violence and abolish so-called village and tribal councils that prescribe such horrific crimes”.[9]
[9] Ibid.
And in relation to honour crimes:
So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, occur in Pakistan. According to Human Rights Watch, the most common reason for honour-related crimes is the violation of social norms and what is thought to be accepted social behaviour. This can include a woman’s choice of clothing, employment, or education; refusal to accept an arranged marriage; getting married without family’s consent; seeking a divorce; being raped or sexually assaulted; and having intimate or sexual relations before or outside marriage, even if only alleged. While young men can be targets of so-called ‘honour killings’, most victims are female. Once a credible threat of a so-called honour killing is established, the victim sometimes remains at risk even if he or she chooses to relocate.
The HRCP (Human Rights Commission of Pakistan) documented at least 346 cases of so-called ‘honour killings’ of women in 2024. In-country sources told DFAT many more women were killed annually in ‘honour’ crimes than reported, especially in Balochistan and KP. For example, Shehbaz filmed his brother Muhammad Faisal strangling their sister, Maria Bibi, to death in a so-called honour killing in the presence of her father and mother, near Toba Tek Singh town in the central-eastern Punjab in March 2023. The video of the honour killing surfaced a week later, showing Maria Bibi had not died of natural causes as reported. Police subsequently arrested the family members. In October 2023 a man in Karachi was arrested after killing his younger brother’s wife for meeting with ‘bad people,’ and when his brother intervened, the man killed him as well.
Laws criminalise so-called ‘honour killings’ and other violent acts committed against women in the name of traditional practices, including the Protection of Women (Criminal Laws Amendment) Act (2006) and the Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act (2016). According to in-country sources, despite explicit provisions in the Offences in the name or pretext of Honour Act (2016) against offenders paying compensation to the victim’s family member in order to avoid a conviction, in practice, perpetrators of so-called ‘honour killings’ had successfully paid bribes to stay out of jail. If an offence is recorded as a ‘murder’ instead of an ‘honour killing’, the Offences in the name or pretext of Honour Act (2016) does not apply and the heirs of the victim may ‘forgive’ the offender through the Islamic legal practice known as diya and the payment of compensation. Instances of so-called ‘honour killings’ are often reported as suicides or accidents, resulting in authorities not investigating them thoroughly. In-country sources told DFAT Pakistan’s government was aware of authorities miscategorising so-called ‘honour killings’ and often turned a blind eye to it unless a case received significant media attention, which was rare considering most so-called ‘honour killings’ went unreported and unpunished. [10]
[10] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan, 30 April 2025, country-information-report-pakistan.pdf.
A recent study found that honour killings are often tied to property disputes and other difficulties that occur at the time of the victim’s death, as well as to shame and cultural practices and: [11]
The annual growth in the honour killing justification can be traced to the faulty operation of the state’s organs. The media manages to report on the crimes despite the fact that tribal councils are frequently more powerful than courts in Pakistan where the number of recorded cases is exceptionally low so they typically involve the victim’s own family…. Tribal councils currently possess the authority to conduct business autonomously, owing to the comprehensive resolution of legislation, judicial interpretation, and police corruption that contributed to these issues.[12]
[11]
[12] Ibid.
Another article also confirms the perpetuation of the practice of honour crimes and how they affect Pakistani women’s lives:
In Pakistan, ‘honour’ killings continued to claim the lives of women throughout 2024, perpetuated by deeply ingrained societal beliefs about family dignity and shame.
As the year draws to a close, the pattern persists, with women across the country falling victim to violence. These cases are not mere statistics – they represent the harsh reality faced by countless women, where personal autonomy and dignity are violently stripped away under the guise of preserving family ‘honour’.
…
Tahira Abdullah, a human rights defender, highlighted several societal factors that drive the increase in Gender-Based Violence (GBV), including ‘honour’ killings.
She pointed to patriarchy, sexism, rising misogyny, and toxic masculinity as key drivers, highlighting the persistence of archaic notions of “honour/dishonour,” with men’s honour often seen as residing in women’s bodies, contributed to the rise in crimes.
Women continue to be perceived as property or chattel owned by men, and daughters are considered an economic and socio-cultural burden, she said, while also attributing the rise in violence to the influences of feudalism and tribalism, as well as factors such as poverty, ignorance, and illiteracy.[13]
[13] “Honour’ crimes continued to persist in 2024, threatening Pakistan women’s lives”, Sarah B.Haider, 31 December 2024, DAWN, ‘Honour’ crimes continued to persist in 2024, threatening Pakistani women’s lives - Pakistan - DAWN.COM.
In terms of family violence across the board in Pakistan, the Sustainable Social Development Organisation issued a press release on its report ‘Mapping Gender-Based Violence (GBV) in Pakistan 2024’, showing that such violence in all its forms - incidents of rape, kidnapping, abduction, domestic violence, and honour killings, had surged in Pakistan and that conviction rates remained extremely low.[14]
[14] ‘SSDO Report 2024: Gender-Based Violence Surges in Pakistan with Dismal Conviction Rates’, ssdo.org.pk/media/ssdo-report-2024-gender-based-violence-surges-in-pakistan-with-dismal-conviction-rates.
It is not by coincidence that the applicant has lost custody of her son, given that males are viewed as prized, and her husband wishes to continue to have control over him which feeds into the issue of the applicant’s husband’s honour.
The Tribunal is satisfied that the applicant’s claimed events in Pakistan have occurred and that there is a real chance as opposed to a remote or fanciful one, that if she were to return to Pakistan now or in the reasonably foreseeable future she would face serious harm such that she and her daughter face a threat to their lives or liberty;significant physical harassment and physical ill-treatment; significant economic hardship that threatens their capacity to subsist; and denial of access to basic services, where the denial threatens their capacity to subsist, all because the applicants are single women who have defied their cultural and religious mores in Pakistan and who have not complied with the orders of the jirga.
The country information referred to demonstrates that the police and the legal system are ineffective in protecting women and that indeed they are the enforcers of a system based on patriarchy and which has enabled the jirga system to operate. The country information also shows that it would not be reasonable for the applicant as a single mother to try to raise her daughter in any other part of Pakistan, due to the strict religious and cultural practices which dictate that a woman should live with her husband. As a single mother, the Tribunal does not accept that the applicant would be able to survive to make a living for herself and her child given the status of single mothers (a status that is unrecognised in Pashtun culture) who are seen to belong to their husbands. The Tribunal also finds the applicant is undergoing serious mental health conditions because of having lost her son to her husband in another country and not knowing about his condition.
The Tribunal notes that the applicant has stated that her husband sometime lives and works in [Country 1] although she appeared not to be sure of his whereabouts. She explained at hearing that there is a sizeable Pakistani community in [Country 1] which travels between the countries. The Tribunal has sighted country information confirming that such a partnership between the countries exists.[15] Even if the applicant’s husband were never to return to Pakistan and on the basis of his previous movements that is unlikely, his family continue to live in Pakistan and could harm the applicant and would be in a position to inform the applicant’s husband that the applicant and their daughter were in Pakistan. The Tribunal does not find that the applicant’s residency in [Country 1] occasionally would provide the applicants effective protection.
[15] [Information deleted]
Conclusion
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s.36(2)(a) of the Migration Act; and
·(ii) that the other applicant satisfies s.36(2)(a) of the Migration Act also.
Representative:     Muhammad Raza Ali
Date of hearing:     15 May 2025
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.
…

28 October 2024, Judicial Inefficacies and Legal Inconsistencies in Addressing Honour Killings: A Human Rights Analysis of Pakistan's Legal Framework by Ahmad Talha :: SSRN.

‘Judicial Inefficiencies and Legal Inconsistencies in Addressing Honour Killings: A Human Rights Analysis of Pakistan’s Legal Framework’, Ahmad Talha, Dalian Maritime University, School of Law,
28 October 2024, Judicial Inefficacies and Legal Inconsistencies in Addressing Honour Killings: A Human Rights Analysis of Pakistan's Legal Framework by Ahmad Talha :: SSRN.