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1825676 (Refugee) [2023] AATA 4522 (17 October 2023)

Last Updated: 14 February 2024

1825676 (Refugee) [2023] AATA 4522 (17 October 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr George Vassiliou (MARN: 0746634)

CASE NUMBER: 1825676

COUNTRY OF REFERENCE: Pakistan

MEMBER: Paul Noonan

DATE: 17 October 2023

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 October 2023 at 11.36am

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to Baloch independence – suspected links to Baloch separatists – particular social group – teacher who has advocated for rights of girls and women to be educated – returnee from the West – young Westernised female with Christian education – woman participating actively in education – race – Marri tribe – threats of harm by extremist militants – risk of harm localised to Balochistan – relocation to large city with ethnically and religiously diverse population – existing family support networks – no practical barriers to relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5F, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA [2020] FCAFC 68; (2020) 276 FCR 644
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51


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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
  2. [Name] (Applicant One), [name] (Applicant Two), [name] (Applicant Three) and [name] (Applicant Four) all claim to be citizens of Pakistan. Applicant One applied for the visa on 31 December 2015. The applicants first arrived in Australia on [date] February 2014. Applicants One and Two made their own claims for protection. The other applicants did not make claims of their own to the Department. The delegate refused to grant the visa on the basis that, while Applicant One is at risk of persecution in Balochistan, she could safely relocate to another area of Pakistan, particularly the Punjab and Sindh provinces, where there is not a real chance of serious harm or a real risk of significant harm to her. The delegate found that Applicants Two to Four are members of the same family unit as Applicant One. Accordingly, the delegate also found that Applicants Two to Four were not members of the same family unit as a non-citizen who engages Australia’s protection obligations and as such were also not eligible to protection from the Commonwealth.
  3. The Tribunal notes that a written internal recommendation for granting refugee status was made in this matter prior to the decision of the delegate. As noted at hearing, this recommendation has no legal standing and forms part of the totality of the evidence before the Tribunal, which is tasked with making a fresh or de novo decision in this matter.
  4. The delegate was satisfied that the applicants’ country of nationality is Pakistan, and the Tribunal is also so satisfied, on the basis of their Pakistani passports, copies of which are retained on the Department file, and accordingly has assessed their claims with respect to Pakistan as the country of reference or receiving country for the purposes of this appeal. The applicants have not made claims nor is there any evidence to indicate that they have a right to enter and reside in any third country. The Tribunal finds the applicants have no such right.
  5. The applicants appeared before the Tribunal on 20 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
  6. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

CRITERIA FOR A PROTECTION VISA

  1. 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.
  2. 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.
  3. 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).
  4. 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.
  5. 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

  1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent country information report with respect to Pakistan produced by DFAT was issued on 25 January 2022.

Member of the same family unit

  1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include the spouse and children of the applicant (who have not turned 18).
  2. Spouse is defined in s 5F of the Act and the Tribunal has considered this section of the Act for the purposes of reg 1.12. Firstly, the Tribunal is satisfied that Applicants One and Two are in a married relationship that is valid for the purposes of the Act. The Tribunal notes that Applicants One and Two have resided together for many years and have two children, who live with them both on a permanent basis. There is no material before the Tribunal that may cast doubt on the existence of their genuine spousal relationship and the delegate also took no issue with the relationship. The Tribunal is also satisfied that Applicants Three and Four are the children of Applicants One and Two, which the delegate also took no issue with. Applicant Three was born on [date]. As such, she is [age] years old. She informed the Tribunal that she is studying full time at university and is in the [number] year of her studies. She resides on a full-time basis with Applicants One and Two. As such, the Tribunal is satisfied that she meets the requirement set out at reg 1.12(2)(ii) of the Regulations to be considered a member of the same family unit as Applicant One. Applicant Four was born on [date] and the Tribunal is satisfied that he also meets these requirements. Applicants Three and Four are therefore taken to be members of the same family unit as Applicant One.

Summary of claims

  1. Applicant One maintains her claims to fear harm as per her original claim to the Department. She informed the Tribunal that she fears persecution:
  2. Applicant Two maintains his claims to fear harm as per his original claim to the Department. He informed the Tribunal that he fears persecution:
  3. In addition to the above, Applicant Three introduced her own claims during the Tribunal hearing. She stated that she fears persecution:
  4. Applicant Four continues to rely upon the claims of the other applicants.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. The Tribunal has no credibility concerns with respect to any of the applicants in this matter. All evidence was given in an open, uncontrived and consistent manner.
  2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
  3. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

Marriage

  1. Applicants One and Two confirmed that, while there was initial family disagreement with respect to their proposed marriage, their respective families had in the end given the marriage their blessing, had attended the marriage ceremony and had supported them for many years as a couple thereafter. The Tribunal discussed with them that they had also subsequently resided in the Balochistan community for many years in close proximity to Applicant Two’s family without any harm or threats of serious harm. Applicant One submitted that she had suffered gossip and bullying at work when the marriage became known as a free-will marriage. She was forced to resign. The Tribunal noted that soon after, however, she travelled from Sindh province (where she was born and raised) to Balochistan with Applicant Two and resided there for many years thereafter. Further, as discussed, there is no country information before the Tribunal reflecting persecution for reason of marriage, free-will or otherwise, between a Baloch man and a woman from another area of Pakistan such as Sindh. Country information reflects that serious harm, in the form of honour killings, does occur in Pakistan and is always related to marriages and relationships perceived to have “dishonoured” families. However, this is clearly not the case with respect to this particular relationship and marriage. There is no suggestion that honour killings are carried out by members of the community not associated in any way with family members of the victims. The Tribunal found the evidence of Applicants One and Two with respect to claims centred on their marriage to be weak and without much substance given there is no family ill will directed towards them for this reason. The Tribunal does not accept that the type of low-level discrimination described by Applicant One rises to the level of serious harm. In addition, while Applicant One raised a somewhat vague claim that marrying a Marri Baloch tribesman may lead to persecution, there is simply no substantive basis in evidence to this claim as she lived for many years in Balochistan with her husband with no harm or threat of harm for this reason. There is no country information to reflect that a union of this type (that is, a marriage between a woman from Sindh and a Mairi tribesman from Balochistan) has ever, or would ever, attract any type of adverse attention from any members of the broader Pakistan community. There is also no suggestion that either Applicant One’s or Applicant Two’s extended family have ever received a threat of harm for reason of this marriage.
  2. Overall, as the marriage was ultimately undertaken with the blessing of each family, the Tribunal does not accept that there is a real chance of serious harm to Applicant One or Applicant Two for reason of their marriage (and for any reason attached to that marriage), either now or in the reasonably foreseeable future should they be required to return to Pakistan.

Imputed political opinion - opposition to Baloch independence/Marri Tribe heritage and separatist groups/suspected links to Baloch separatists

  1. Applicant Two submitted that past extended members of his family had been targeted for persecution due to their links, imputed or otherwise, to the Balochistan independence movement. He noted threatening anonymous phone calls in 2009 and other behaviour from suspected independence advocates that he suspected was related to peace meetings with tribal leaders brokered by his uncle and also with respect to a chance meeting he had with an army person. He also noted that a cousin in Balochistan has gone missing since 2020 and speculates this is the work of unfriendly actors. The Tribunal notes that in general there has been a relatively high level of militant and state related violence in Balochistan and that this has continued in recent times. It is plausible that Applicant Two’s cousin was caught up in such actions, however, it is ultimately speculative, and country information indicates that it is active members of Baloch separatist groups who have been targeted in this manner by the authorities.[1] The Tribunal does not accept that the disappearance of a cousin demonstrates an adverse intent against Applicant Two by unfriendly actors because he is not a member of a separatist group or aligned with separatists or anti-separatists. Further, it is undisputed that he currently has immediate family members living in Balochistan and working in government, including two brothers and a sister, and this indicates that his immediate family has no adverse profile with the authorities.
  2. While the Tribunal accepts it is plausible that Applicant Two received some anonymous threats in 2009, it is also clear that he enjoyed a long career in Balochistan with a multinational company and lived there for many years without any serious harm, including for many years after these claimed threats, until 2014. His family continue to live there unharmed and members of his family still live there and work for the local government without having suffered serious harm. The Tribunal acknowledges the applicant’s evidence that they took constant security precautions. However, the Tribunal does not accept, given this personal history, that Applicant Two would, many years after the anonymous threats, now be of any adverse interest to either Balochistan independence movement persons because of a perception he does not support them, or for the general reason of his Marri tribe heritage, which has not been a reason for threats of harm towards either the applicants or his relatives still living in Balochistan. In addition, there is no suggestion that the applicants are in any way personally associated with the Balochistan independence movement or have received clearly identifiable threats of harm for this reason in the past. They were able to travel unhindered within Pakistan and exit Pakistan unhindered by the authorities and as discussed, Pakistan maintained exit control lists of persons wanted when they exited.[2] The Tribunal is satisfied that the applicants would again be of no adverse interest to the authorities should they return for reason of a perception that Applicant Two or One supports Balochistan independence movement persons.
  3. Given the above reasoning, the Tribunal does not accept that there is a real chance of serious harm to Applicant Two or the other applicants for these reasons, either now or in the reasonably foreseeable future, should they be required to return to Pakistan.

A high-profile woman (Applicant One) who works as a teacher and who has advocated for the rights of girls and women to be educated in Pakistan

  1. Applicant One submitted extensive evidence about her educational qualifications in teaching. The Tribunal accepts that she has worked [in] girls’ secondary education and that she also worked for [employer] promoting education for girls. The Tribunal accepts her evidence that she was threatened by a political party member for advocating for girls’ education rights. The Tribunal accepts that, since being in Australia, she has also completed a Master’s of Education at [university].
  2. Country information reflects that in Balochistan the targeting of female teachers, female students and female education institutions, as well as those promoting female education, by militant groups has been a long-standing issue, although the frequency of such attacks has been falling in recent times.[3] There have been recent reports of a resurgent interest by militants in this type of attack on the frontier areas with Afghanistan. [4] As Balochistan is a frontier state, the Tribunal accepts that the risk of targeting of advocates for girls’ education is still present.
  3. As the Tribunal accepts that Applicant One has a profile in the area of girls’ education and will advocate for this upon return to Balochistan, as she has done in the past, it also accepts that there is a risk, that is not entirely remote, that she would be targeted by extremist militants for serious harm there should she return.
  4. Given the above reasoning, the Tribunal accepts that there is a real chance of serious harm to Applicant One should she be required to return to Balochistan. Further, the harm would be for the essential and significant reason of her membership of the particular social group of educated women who work in girls’ education and advocate for the rights of girls and women to be educated. The Tribunal is also satisfied that the serious harm would be the result of systematic and discriminatory conduct by militants directed specifically at Applicant One.

Returnees from the West, and a woman (Applicant Three) who was educated in a Catholic school in Australia

  1. The Tribunal discussed with the applicants that DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad.[5] The Tribunal notes that there is no mention of any specific risk related to perceptions of wealth purely because of having spent time in the West and accepts the DFAT assessment in this regard. The Tribunal discussed with the applicants that this may reflect that they would not be of adverse interest to anyone merely for the reason of having lived in the West for a period of time. They continued to advocate their fears in this regard.
  2. On the basis of the country information cited, the Tribunal does not accept that there is a real chance of serious harm to the applicants anywhere in Pakistan merely for the reason of being returnees from the West either now or in the reasonably foreseeable future.
  3. Applicant Three submitted that she has been educated in the Catholic system and is relatively unfamiliar with Pakistani customs. She is studying [at] university in Australia. She fears she will be accused of blasphemy and also that she will be persecuted for being a young, educated woman. She confirmed that she is Muslim. As Applicant Three confirmed that she is Muslim, it follows that she has not converted from Islam. On this basis, the Tribunal does not accept that it is reasonably plausible that Applicant Three will be at risk of blasphemy accusations as she is a Muslim and, further, the Tribunal does not accept as plausible that the nature of the educational institution she attended in Australia will be known in Pakistan or will lead, of itself, to an accusation of blasphemy. The Tribunal does not accept that there is a real chance of serious harm to Applicant Three for reason of her secondary education being undertaken at a Catholic school should she be required to return to Pakistan, either now or in the reasonably foreseeable future.
  4. With respect to Applicant Three’s gender, 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 gender. Poor, marginalised, minority and rural women are particularly vulnerable and lack access to support services.[6]
  5. The Tribunal discussed with the applicants that Applicant Three comes from a higher socio-economic background with a high level of education, and that she would be returning with the full support of male members of her family, including her father, and as such it may not consider that she would be at risk of harm given DFAT assesses that women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom. Applicant Three reiterated that she was extremely concerned for her general safety and overall level of freedom in Pakistan as a young woman. The UK Home Office assesses that: ‘It will not normally be unduly harsh for educated, better off, or older women to seek internal relocation to a city. It helps if a woman has qualifications enabling her to get well-paid employment and pay for accommodation and childcare if required. Where a single woman, with or without children, is ostracised by family members and other sources of possible social support because she is in an irregular situation, internal relocation will be more difficult and whether it is unduly harsh will be a question of fact in each case.’[7]
  6. The Tribunal is sympathetic to Applicant’s Three’s concerns, however, as discussed, she would be returning as a member of a full family unit with close male family support and as a member of a higher socio-economic class. The Tribunal is satisfied that the country information reflects that there is not a real chance of serious harm to her purely for reason of her identity as a young female should she be required to return to Pakistan either now or in the reasonably foreseeable future.
  7. The Tribunal accepts that, on the basis of the same country information used to assess Applicant One’s risk of harm related to the targeting of girls’ education by militants, there is a real chance of serious harm to Applicant Three in Balochistan from extremist militants for reason of her ongoing participation in educational activities. Further, the harm would be for the essential and significant reason of her membership of the particular social group, a woman participating actively in education. The Tribunal is also satisfied that the serious harm would be the result of systematic and discriminatory conduct by militants directed specifically at Applicant Three.

Does the real chance of persecution relate to all areas of Pakistan?

  1. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA [2020] FCAFC 68; (2020) 276 FCR 644 at [80]–[81].
  2. The Tribunal discussed with the applicants that it may consider that the real chance of serious harm pertaining to Applicants One and Three in Balochistan may not apply in Sindh province generally, where Applicant One’s family reside, or in a large city such as Islamabad.
  3. The Tribunal discussed with the applicants that DFAT assesses that: “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.”[8]
  4. The Tribunal has not accepted that there is a real chance of serious harm to the applicants because of official discrimination or adverse interest in general from the authorities. The Tribunal is satisfied that Applicants One and Three do not have a past adverse profile with militant extremists, as they were not directly threatened or attacked when they resided in Balochistan in the past for many years. In addition, neither they, nor any members of their immediate families, who continue to reside in Pakistan, have received clearly identifiable threats of harm from hostile non-state actors since they departed Pakistan.
  5. The Tribunal has taken into account submissions made by the applicants with respect to the internal Departmental recommendation that they be found to be refugees as they could not safely relocate due to the risk that Applicant One will be targeted by militants. This was largely based upon a UNHCR finding that persons of adverse interest to militants could not safely relocate within Pakistan.[9] However, the Tribunal notes that this was a finding made in 2017. The Tribunal gives greater weight to the more recent DFAT assessment that relocation is possible when a person is of adverse interest to non-state actors.
  6. The Tribunal has carefully considered and discussed at hearing the latest credible statistics with respect to militant attacks in Sindh and Islamabad. The latest Pak Institute For Peace Studies report details that in 2022, 95% of terrorist related attacks occurred in Balochistan and Khyber Pakhtunkhwa provinces.[10] The Tribunal set out that there were two terrorist related attacks in Sindh resulting in zero deaths, six in Karachi resulting in eight deaths and 31 injured, and two attacks in Islamabad resulting in five deaths and nine injured, and three deaths in Punjab province resulting in six killed and 30 injured.[11] The Tribunal discussed at hearing that these attacks were overwhelmingly directed at the authorities and in Islamabad the attacks were directed specifically at police.[12] The Tribunal noted that cities such as Islamabad district or Karachi in Sindh have large populations and this, combined with the country information about relocation, the fact that they are not being actively targeted and the nature of the limited militant attacks, may result in a conclusion that there is not a real chance of them being persecuted in Karachi, Sindh or Islamabad.[13] The applicants responded that they believe the risk of militant activity is rising and that they are also at risk of adverse attention from the authorities. The Tribunal does not accept these submissions for the reason set out above and relies upon the country information and its assessment of the applicants’ overall profiles to find that there is not a real chance of persecution in Sindh province or Islamabad. Accordingly, their fears of persecution must be found to be not well-founded.

Complementary protection

  1. In considering whether the applicants meet the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.
  2. For the reasons set out above, the Tribunal has found that there is not a real chance of serious harm to the applicants because of adverse interest from Baloch separatists, the Pakistan authorities, for reason of any of the applicants having lived in the West, for reason of their Marri tribe heritage, or for the reason of Applicant Three being a young woman or for being a woman education in a Catholic secondary school in Australia.
  3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[14] For the same reasons, the Tribunal does not accept that there is a real risk the applicants will suffer significant harm for reason of adverse interest from Baloch separatists, the Pakistan authorities, for reason of any of the applicants having lived in the West, for reason of their Marri tribe heritage, or for reason of Applicant Three being a young woman or for being a woman education in a Catholic secondary school in Australia, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan.
  4. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
  5. With respect to the real risk of significant harm to Applicants One and Three in Balochistan, the Tribunal accepts that in the past, the nature of militant attacks on educated female persons such as themselves, advocating for female education rights, has been targeted and violent, resulting in death and maiming. The Tribunal is satisfied, given the above reasoning, that there is a real risk of significant harm to Applicants One and Three as a necessary and foreseeable consequence of them being removed from Australia to their home area of Balochistan in Pakistan.
  6. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise: where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
  7. As set out above, the Tribunal must also consider whether one of the circumstances under s 36(2A) applies, which will result in a conclusion that there is not taken to be a real risk they will suffer significant harm. The Tribunal has already found that the risk of harm to the applicants is localised to Balochistan and that it does not apply to Sindh province or Islamabad.
  8. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC, which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC [2007] HCA 41; (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
  9. When assessing what is reasonable, the High Court has stated that it means ‘reasonable in the sense of practicable'. This necessitates an analysis of the particular circumstances of the applicant and the impact of relocation on the applicant. Circumstances such as the applicant’s education, employment background and ability to gain employment, language barriers and access to family networks may be taken into account for these purposes.[15]
  10. When relocation was discussed with the applicants, they made strong representations that they would not be safe, however no practical barriers to relocation were clearly identifiable from their evidence. Applicant One has family living in Sindh province. The applicants form a highly educated and cohesive family group and have demonstrated considerable resourcefulness and financial means in moving to Australia, indicating they could also employ such resourcefulness in relocating in Pakistan. Applicant Two’s family work in local government in Pakistan and he has a long history of employment in Pakistan with a multinational company, indicating he would have reasonable employment prospects should this be required. Applicant One also has a long history of employment in education in Pakistan and similar reasoning applies to her employment prospects. They would also be able to fly directly into the areas of Sindh or Islamabad. There are also no language barriers and they have existing family support networks to draw upon.
  11. Given the above considerations, the Tribunal is satisfied that the applicants will be able to reasonably and practically relocate to either Sindh province or Islamabad. As such, the exception at s 36(2B)(a) as per s 36(2A) applies. Therefore, there is taken not to be a real risk that Applicants One or Three will suffer significant harm and they are not persons in respect of whom Australia has protection obligations as outlined in paragraph s 36(2)(aa) of the Act. For these reasons, the Tribunal does not accept that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

Conclusion

  1. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

DECISION

  1. The Tribunal affirms the decision not to grant the applicants protection visas.




Paul Noonan
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.

...

[1] See, e.g.: 'We Can Torture, Kill, or Keep You for Years', Human Rights Watch, 28 July 2011, CXCB3E63421373; ‘A Baloch activist's puzzling disappearance', Herald by Dawn, 15 November 2016, CX6A26A6E13101; 'Politics: Why is the current Baloch nationalist movement different from the rest', Dawn, 6 November 2016, CX6A26A6E17144; see e.g. ‘Long march’ for the missing’, Dawn, 28 October 2013
[2] DFAT Country Information Report Pakistan, Department of Foreign Affairs and Trade (DFAT), 29 November 2013, Section 5.19, p. 23
[3] DFAT Country Information Report Pakistan, Department of Foreign Affairs and Trade (DFAT), 1 September 2017, Section 3.132, p.31; CISEDB50AD5515; '"Dreams Turned Into Nightmares": Attacks on Students, Teachers, and Schools in Pakistan’, Human Rights Watch, 27 March 2017, pp. 42-43.
[4] Enemies of education are back in Malala’s hometown? | Lowy Institute
[5] DFAT Country Information Report Pakistan, Department of Foreign Affairs and Trade (DFAT), 25 January 2022, Section 5.31, p. 44
[6] Ibid, 3.100. p. 32
[7] Country policy and information note: Women fearing gender-based violence, Pakistan, November 2022 (accessible) - GOV.UK (www.gov.uk), 2.6
[8] DFAT Country Information Report Pakistan, Department of Foreign Affairs and Trade (DFAT), 25 January 2022, Section 5.23, 5.24, p. 43
[9] UNHCR Eligibility Guidelines Assess Protection Religion Minorities PAK, UN High Commissioner for Refugees, 01 January 2017, UNAEEA5947, p. 66
[10] SecReport_2022.pdf (pakpips.com), p. 13
[11] SecReport_2022.pdf (pakpips.com), p. 14
[12] SecReport_2022.pdf (pakpips.com), p. 55
[13] Islamabad (District, Pakistan) - Population Statistics, Charts, Map and Location (citypopulation.de)
[14] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]
[15] SZATV v Minister for Immigration and Citizenship [2007] HCA 40

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