Last Updated: Tuesday, 12 December 2017, 12:58 GMT

AATA Case No. 1506100

Publisher Australia: Administrative Appeals Tribunal
Publication Date 1 November 2016
Citation / Document Symbol [2016] AATA 4647 (1 November 2016)
Cite as AATA Case No. 1506100, [2016] AATA 4647 (1 November 2016), Australia: Administrative Appeals Tribunal, 1 November 2016, available at: http://www.refworld.org/cases,AUS_AAT,592d8ca84.html [accessed 13 December 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

1506100 (Refugee) [2016] AATA 4647 (1 November 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1506100

COUNTRY OF REFERENCE: Pakistan

MEMBER: James Jolliffe

DATE: 1 November 2016

PLACE OF DECISION: Sydney

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

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

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



Statement made on 01 November 2016 at 10:40am


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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
  2. The applicants who claim to be citizens of Pakistan, applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] May 2015. The second named applicant had applied for a protection Visa [in] September 2014 but withdrew that application [in] October 2014 and asked to have her claims for protection considered with the protection Visa application of the first named applicant and, the Tribunal understands, also asked to be considered for protection as a member of the same family unit as the first named applicant. Both the first and second named applicants made claims for protection. The third named applicant seeks protection as a member of the same family unit as the first and second named applicants.
  3. The applicants appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The first and second named applicants gave evidence to the Tribunal.

Relevant law

  1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
  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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
  3. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

  1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
  2. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration -PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment 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.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Tribunal and department files relating to the applicants together with relevant information from a variety of sources.
  2. The issue in this case is the applicant's claim to fear harm if they returned to Pakistan on the basis of their interfaith and intercast "Love marriage". They claim to be members of a particular social group in relation to their interfaith and intercast marriage and fear harm on the basis of their membership of that particular social group if they returned to Pakistan. The Tribunal notes that both the first and second named applicants are of the Sunni Muslim faith and in those circumstances the claim for protection relates essentially relates to having engaged in a Love marriage and between different caste groups.
  3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
  4. In his protection Visa application the first named applicant claimed that he was born in [date] [in] the Punjab in Pakistan. He claimed that he married the second named applicant in February 2013. He claimed to be of the Islamic faith and claimed not to belong to any particular ethnic group. He claimed to have only Pakistani citizenship and claimed to have arrived in Australia initially in July 2010 on a student Visa. He claimed that his current Pakistani passport was issued to him in [2013]. He claimed to have lived at the one address in Pakistan since 1999 before coming to Australia in 2010. He claimed have [number] years of education in Pakistan and Australia. In his protection Visa application the applicant said that he initially came to Australia as a student for education purposes. He referred, in his handwritten claims, to having completed a course in [Australia] and having returned to Pakistani 2013 where he was married in a "love marriage".
  5. He claimed that his family and his wife's family did not agree with the marriage and that his wife had previously been engaged to her cousin. He said his wife refused to marry her cousin. He said that the cousin belonged to the "[Caste 1]"caste and he said that the cousin came from an uneducated family. He claimed that his family were not in agreement with the marriage because he was marrying out of the family and he claimed that his family would not give him anything as a result. He claimed that he was threatened by his wife's cousin and abused and that they also fought with him and he claims they "take my wife home back". He claimed that both families eventually agreed to the marriage on condition that the second named applicant would not live with his family and that he would take his wife with him. He said his wife did remain with his family for some months after he returned to Australia and he applied for a Visa for her to come to Australia. He claimed in that time that his wife was mistreated by his [family]. He claimed that his family would not accept the marriage and he claimed that his wife's cousin had threatened him that he and his wife would be killed if they returned. He said he was concerned at the time of making the application that his wife was pregnant and he did not want for her to suffer any tension and wanted his baby to live in peace and in a safe country.
  6. He claimed to fear harm from his wife's cousin and her family and he claimed that the family were "well off" and "powerful" and in those circumstances the family can "do anything with us even police can't take any action against them as they have so many links". He claimed that he had been previously threatened by people associated with his wife's cousin and he claimed that he could not get effective state protection from authorities in Pakistan and the police were not capable of protecting the applicants
  7. As indicated the applicant's wife, the second named applicant, made a protection Visa application in August 2014. She subsequently withdrew that separate application and asked for her claims to be considered with the protection Visa application of the first named applicant. In her protection Visa application she claimed to have been born in [year] [in] the Punjab in Pakistan. She claimed to be of the Islamic faith and to have married in February 2013. She claimed to have no right to enter or reside temporarily or permanently in any other country apart from Pakistan. She claimed to have arrived in Australia in March 2014 and to have been issued with a Pakistani passport in [2013]. She claimed to have been educated for [number] years in Pakistan and to have completed university level studies and to hold a [qualification in a subject].
  8. She provided reasons for seeking protection in Australia. In those reasons she claimed to belong to the [Caste 1] cast in Pakistan which she described as "quite conservative" and that cast did not allow women to choose their own partners and she claimed that she had been engaged since she was a child to her [cousin]. She referred to meeting her husband and their decision to marry. She referred to her husband having sought permission from his parents to marry her. She claimed that his parents did not approve of marriage outside a particular caste. The Tribunal understands as well that the second named applicant's parents were also opposed to the marriage even though the handwritten reasons in the protection Visa application are difficult to understand because of grammatical issues in relation to some issues. It appears that the second named applicant informed her parents that she would either elope or kill herself if she was forced to marry her cousin. She claimed that she was "scolded" and locked in a room by her parents because of this issue. She claimed that her family issued a statement declaring that the second named applicant would no longer be regarded as a member of her family and that her family did not wish to see her again because of her decision to marry the first named applicant. She claimed that she was then made to suffer because she lived in a "humiliated way at my in-laws". She claimed she was "tortured" physically and mentally and abused because of her marriage and she also claimed she suffered a [health issue] because of the mistreatment that she received while living with her in-laws. She said she did not wish to have any further risks for her baby or her health and wanted to remain in Australia. She claimed to have suffered a [health issue] in March 2013. She claimed that if she returned to Pakistan that the situation because she is a mother now "may not be pleasant for anyone out there".
  9. She claimed that she was aware of several incidents that had happened in Pakistan "because of love marriage, caste discrimination etc". She claimed that her family did not want to see her or have any contact with her and she would not be secure if she returned to her parents home. She claimed on one occasion that she and her husband were threatened by two or three friends of her cousin to whom she had previously been engaged. She claimed that if she returned to Pakistan she would definitely be the subject of torture or that she might be punished by having acid thrown on her or her baby may be taken away and her husband's life would be in danger. She claimed that she could not get state protection in Pakistan because females cannot access police stations or requests protection and particularly so in what she described as the "backward area where we belong". She claimed the police could not protect themselves and that authorities in Pakistan are at risk as are airports and that there is political instability in the Punjab and because of the instability people have nothing to eat and cannot access petrol or gas
  10. She also provided some country information in relation to Pakistan and that included a media article dated 28 May 2014 which referred to a pregnant woman being stoned to death by her family in front of the Pakistani High Court because she had married a man she loved. In summary the media article also referred to incidents of honour killings in Pakistan apart from this particular incident. Another media article was dated June 28, 2014 and was headed "family kills Pakistani couple after they married for love" and referred to the killings of a couple in a village in Punjab after they had married for love. In summary the article also refers to reports about honour killings and killings in relation to modesty issues(in relation to women) in Pakistan more generally as well as the particular incident. There was a further media article dated July 2014 which referred to a report provided to the Asian human rights commission in relation to the death of a young couple after they engaged in a marriage of their choice and in summary the short article also refers to the father of the groom being required to hand over one of his daughters to the family of the bride in an arrangement that was described as being part of a "parallel judicial system" and the article also refers to issues of honour killings. Further media articles were also provided which in essence dealt with unrest in Punjab and Pakistan more generally and referred to incidents in Lahore and in Karachi in August 2014. One article also refers to the deployment of paramilitary rangers in Lahore in order to ensure security. Some of the media articles referred to attacks by the Pakistani Taliban as well as clashes between members of the Pakistan Awami Tehreek and Pakistan authorities.
  11. The applicants produced their Pakistani passports and national identification cards and their birth certificates and their marriage registration certificate. A protection Visa application was also made in April 2015 in relation to the third named applicant who was the child of the first and second named applicants. A copy of the third named applicant's birth certificate was provided to the Department. A further protection Visa application was lodged by the second named applicant in October 2014 and that contains much of the same information that was previously provided in the application made in August 2014. She said in that application that she came to Australia because her husband obtained a Visa for her and that the circumstances in which she was living with her in-laws were not favourable. In summary she referred to she and her husband (the first named applicant) marrying against the will of their parents and that her family "departed me" [in] February 2013 which is the date of the marriage. She claimed she was not accepted by her in-laws and again referred to having been humiliated and scolded and tortured and not being allowed to go out of the house and also referred to the [health issue she suffered]. She said she and her husband were afraid of returning to Pakistan "because we were threatened by some horrible looking boys". She said they "missbehaved with my husband on gunpoint". She claimed they were friends of her cousin and that the people who threatened them came from "well off families". She referred to being pregnant and being sick at the thought of remaining in her town and did not want any harm to come to her baby with whom she was pregnant. She claimed that "no one would be happy see me pregnant and can do anything to stressed or even harm me". She claimed that her family was under pressure from [other relatives] and they might cause harm to her husband or her baby and that her in-laws were also opposed to her. She said if she returned to Pakistan that members of her caste might harm her because she engaged in love marriage. She referred to her husband's cast as being "[Caste 2]" and very religious and that they think the second named applicant is in essence a bad person and that her in-laws would not respect or love her. She claimed that she could not get effective state protection if she returned to Pakistan and referred to authorities being corrupt and ignorant and the police authorities are under pressure from rich people and political parties and the police themselves were not safe because of political instability and terrorist activity. She claimed the Pakistan was suffering from " terrorism, corruption, unemployment, poverty gas and electricity load shedding and much more serious issues".
  12. As indicated the second named applicant requested [in] October 2014 that her protection Visa application be withdrawn and that she wished to combine her claims with that of her husband. The Tribunal has proceeded on the basis that the first named applicant is the primary applicant in terms of claims for protection but the second named applicant also claims protection on particular grounds and also seeks protection as a member of the same family unit as the first named applicant and the third named applicant seeks protection as a member of the same family unit as the first and second named applicants.
  13. A Department delegate considered the applicants protection Visa claims and declined to grant the applicants protection visas. A copy of the delegate's record of decision was provided with the application for a review.

TRIBUNAL HEARING

  1. The applicants appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The first and second named applicants confirmed their personal details and particulars to the Tribunal. The Tribunal was provided with their passports together with a document in Urdu which related to the arrest of the second named applicant's cousin (to whom the second named applicant had previously been engaged) and was a newspaper article regarding allegations that he had been [conducting criminal practices] in Pakistan. The Tribunal was also provided with a newspaper photograph said to be of the second applicant's cousin which displayed [evidence] that had apparently been seized and the cousin being photographed with several military or police officers at the time of his arrest. The Tribunal was told that the cousin had been released after about a week by the authorities and the applicants did not know if he had been charged because of the [illegal goods]. The Tribunal was told the cousin conducts an illegal [business] in Pakistan. The Tribunal was also provided with a Pakistani national identity card in respect to the third named applicant. The Tribunal was also provided with newspaper articles which in summary related to a Pakistani man being killed for having an affair in Pakistan and that article was dated July 2016 and there was another newspaper article dated July 2016 which related to the murder of a Pakistani social media star who had apparently been killed by her brother in an alleged honour killing. Another media article referred to child abductions in Punjab and that was dated August 2016. Both the first and second named applicants gave evidence to the Tribunal.
  2. The first and second named applicants both confirmed their religion as being Sunni Islam but both came from different sects. The first named applicant was from the [Caste 2] caste the second named applicant from the [Caste 1] caste.
  3. The Tribunal noted that a section 438 certificate was on the Department file but that the Tribunal did not regard the documents as being relevant to the applicants claims and the Tribunal was placing no importance or relevance on those documents referred to in the certificate in assessing the applicants claims. The applicants were asked if they wished to comment on that issue and the second named applicant essentially indicated that they would rely on the Tribunal's judgement in assessing their claims.
  4. The basis for claiming protection in Australia is that both the first and second named applicants claim to be members of a particular social group who had engaged in a love marriage which had not been approved by their families and it was an inter-caste //inter tribe marriage and they claim to be at risk on that basis. In essence the first and second named applicants nominated the second named applicant's cousin and his friends as being the source of their feared harm. The second named applicant said she also feared her cousin's [family] and friends. The second named applicant appeared to have a particular fear of harm from her [Relative 1]. They said that was the only basis on which they were seeking protection in Australia They both claimed they were not afraid of harm from their parents or from Pakistani authorities. The second and third named applicants were seeking protection in Australia as members of the same family unit as the first named applicant but as indicated elsewhere in these reasons the second named applicant had also previously raised particular issues in support of her claims to fear harm if she returned to Pakistan and was therefore also seeking protection in Australia on that basis. The Tribunal was told the applicants had married in Pakistan in February 2013. The Tribunal was told that members of both the first and second named applicants families had attended the marriage. The first named applicant claimed that both parents had attended the marriage ceremony but the second named applicant was more specific in her evidence and said that the marriage ceremony had been attended by her mother and her [siblings] and her [specified relatives] and both the first named applicant's parents. The second named applicant had arrived in Australia in March 2014. The first named applicant had previously worked in Australia doing [two specific occupations] but he had not worked in the last two years and the family relied on [two agencies] to survive. The first named applicant had previously worked as an [Occupation 1 at an employer] in Pakistan. The first named applicant confirmed that he had completed his application for a protection Visa in Australia. He said that he talks to his mother and sister occasionally in Pakistan and occasionally texts them.
  5. The first named applicant told the Tribunal that the third named applicant had been registered as a Pakistani citizen and as indicated the Tribunal was provided with a national identity card for the third named applicant.
  6. The Tribunal asked the first named applicant about his claims. The Tribunal asked him about why there had been an apparent Visa delay in the second named applicant coming to Australia. He said that he had applied in July/August 2013 for the second named applicant to come to Australia and that delay had been caused because he did not have enough money to apply for the Visa. He was asked about the circumstances in which he had applied for a protection Visa in Australia. In summary he outlined his education activities since coming to Australia and that he had been intending to seek a renewal of his student Visa and he then intended to apply for residency in Australia. He then discovered that there were difficulties in extending his student Visa. He said that his wife did not want to return to Pakistan. He also claimed he was afraid to return to Pakistan notwithstanding that he had returned there twice after he had married. The Tribunal noted that the first named applicant had returned to Pakistan twice after his marriage and also noted the delay in applying for a protection Visa in Australia. The Tribunal raised its concerns that the return trips to Pakistan and the delay in applying for a protection Visa did not seem consistent with the applicant's claims that he feared harm in Pakistan. As indicated the applicant said he had been intending to get an extension of his student Visa and then apply for residency in Australia but then encountered difficulties and was given one week to leave Australia. The Tribunal noted that the applicant had returned to Pakistan for a period of three months after his marriage. He said he returned because he had [suffered an injury] and that medical treatment in Australia was too expensive and he had injured himself at work and could not get workers compensation in Australia. He said he could not afford to support himself in Australia while he was recovering from his [injury] and he returned to Pakistan to recover. He said the second occasion on which he returned to Pakistan was so that he could travel with his wife to Australia and she could not travel by herself and she had not travelled outside Pakistan before. The second named applicant when giving evidence to the Tribunal confirmed that she had never travelled outside Pakistan before coming to Australia and when asked about the delay in applying for a protection Visa said that she could remember that her husband had a problem with his student Visa and that she and her husband were not familiar with the visa system and only found out about a protection Visa from a lawyer at the time of the difficulties surrounding the student Visa and being told to leave Australia within one week on that occasion.
  7. The Tribunal asked the first named applicant about how he met his wife and the applicant outlined the background in that he had been working as an [Occupation 1 at an employer] and had met his wife's [sibling]. He first saw his wife and 2009 and then had more contact with her in 2011 when he had returned to Pakistan. He said he sought permission from their families to get married . He said his wife occasionally worked as [a casual employee] at [that employer] where he worked but that they lived [distance range] apart in Pakistan.
  8. He was asked about suffering harm in Pakistan and his claims. He told the Tribunal that the first incident had occurred shortly after his marriage in February 2013 when he and his wife had gone out shopping. He said on that occasion his wife's cousin had slapped him and had pointed a small gun at him but that his wife had begged the cousin to let them go. The first named applicant said that there were about seven or eight people involved but only the cousin had slapped him. The applicant said that the cousin had said that he would kill the applicant and his wife if he saw them again. The first named applicant claimed that about two or three days later after this incident he had been attacked by friends of the cousin who had punched the applicant. He claimed that there were about five people involved. He said the attack was interrupted by people who had been in a motor vehicle nearby and they had intervened to stop the attack. The applicant claimed that he was punched in the nose and in the head and in the ribs and that he went to a small clinic to get some medical treatment after this incident.
  9. The applicant claimed that he again saw his wife's cousin ( he thought in May 2013) when he had returned to Pakistan because of his [injury]. He said that he and his wife and some friends had attended at a hospital and that when they were leaving the hospital they had seen the cousin who was carrying a rifle. The applicant said the cousin grabbed the applicant on his shirt and started fighting the applicant and said words to the effect "why did you come back?". The applicant claimed his friends intervened and stopped the cousin. The applicant said that the last time he had seen the cousin was at the May 2013 Hospital incident. The applicant said that he had not received any telephone threats when he had been in Pakistan. He told the Tribunal that he had reported the first incident involving the cousin to the police (the February 2013 shopping incident) but he did not have any documents to substantiate that claim and he said he had not reported the other two incidents to the police. The Tribunal notes that there is a degree of inconsistency between the first named applicant and the second named applicant in terms of their evidence about some incidents involving claimed harm or threats of harm. The Tribunal also notes that there appears to be a degree of inconsistency between the applicants evidence to the Tribunal and the evidence referred to in the delegate's record of decision about particular incidents that were said to have occurred in Pakistan and which relate to claims to fear harm by the applicants (see page 14,paragraph 2 of the delegates decision record).
  10. The first named applicant said there were three incidents involving either his wife's cousin or his wife's cousin's friends where he had faced harm. He claimed that in two of those incidents his wife was present. Those incidents, according to the first named applicant, had all occurred after his marriage. The second named applicant gave evidence about the incident that occurred when she and her husband had been out shopping shortly after their marriage in February 2013. She spoke about that occasion and said she begged the cousin and the others to go away and leave her husband alone. She said they tried to hit her husband and she said the group had maybe one or two pistols and her cousin had also pulled her hair on that occasion. She also said that she believed her husband was threatened before they had married and she believed it was her cousin who had threatened her husband. She told the Tribunal that she had not been present at the occasion when the first named applicant claimed he had been leaving a hospital with some friends and the cousin had grabbed the applicant on that occasion. She said she had not been allowed to travel to the hospital with her husband by her husband's relatives on that occasion.
  11. The second named applicant gave evidence about her relationship with her cousin and the expectations of her family that she would marry that cousin. She said that she had received a good education in Pakistan and had been allowed to study four days a week at University and she had started her [course]. She said that from around 2012 to 2013 she knew that there was an expectation that she had to marry within the family. She said that the cousin was involved in [some criminal practices] and that [Relative 1] had a lot of businesses and including [criminal practices] and including [two specific businesses] and a number of shops as well as a house. She said she feared her cousin because of the guns he always carried and his involvement in the [criminal practices]. She said her [Relative 1] was a powerful person who apart from being rich had political contacts and used to be associated with [a political] party in Pakistan. She said he was currently not in politics in Pakistan. She referred to the photo that had been provided to the Tribunal showing the cousin alongside police or military officers [when] he had been arrested in Pakistan.
  12. The second named applicant described an incident when she had been engaged to the cousin and he had become upset when she had started studying her [course]. She claimed that he had threatened her over the phone about continuing her studies and on one occasion he had placed fingers around her neck and threatened to kill her unless she stopped studying. She said that the cousin was poorly educated and in essence she suggested to the Tribunal that he would not agree with a woman having a better education than him. She told the Tribunal about meeting the first named applicant in 2009 and said that she wanted to get away from her family. She told the Tribunal that if she returned to Pakistan she would be "paranoid" about her in-laws and that she was afraid of her [Relative 1] and she feared being the subject of an acid attack or her children being harmed.
  13. The Tribunal raised the possibility of the applicants relocating within Pakistan if they feared harm in their home area. The second named applicant said that a friend's cousin had a child who had been kidnapped and held for ransom. She claimed that her children could be at risk because there could be an assumption or perception that because they had lived overseas they could be perceived to be wealthy and subject to risk of kidnapping and ransom. She said that it would be hard for her husband to get a good job and it would be difficult for her to work because she had to look after the children. She said the family would struggle to meet accommodation and living expenses and she was also concerned about general security issues in Pakistan.
  14. The first named applicant in discussing relocation said that he could not support his family in Pakistan and was afraid of his wife's [Relative 1] who he said had connections with a member of Parliament in Pakistan and was connected with the Pakistan Muslim league. He claimed that the police supported the families opposition to the applicants marriage (and by implication that his wife's [Relative 1] could exert influence on the police). He said he was also afraid that because his children had been born overseas people might think that the family was rich and that could pose a threat to the children if they returned to Pakistan. He told the Tribunal that his wife's cousin's family was powerful and were involved in illegal businesses and including [a criminal activity] and that they had political links. He claimed that his wife or his children could be kidnapped. He said in discussing relocation that he had not completed his studies in Australia and he had no savings and he had no money to travel or to meet the expenses involved in supporting his family in Pakistan. He described the differences between the [Caste 2] and [Caste 1] sects as [details deleted] and he said he had had no connection with that sect before meeting his wife. He told the Tribunal he had not been involved in politics in Pakistan and that he had not had any problems in Pakistan because of his religion or his caste.
  15. The Tribunal noted that apart from the incident in February 2013 involving her cousin and his friends there had been no incidents of harm by the cousin to the second named applicant. The Tribunal notes her evidence in relation to the threat from the cousin if she continued to undertake tertiary education in Pakistan. The second named applicant referred to the time she spent living with her husband's relatives and she said she had not been allowed out of the house during that time (and by implication avoided risk of harm by remaining at home during that time). She told the Tribunal that her [siblings] were in touch with her cousin's family and that one [sibling] had told her words to the effect "don't think of coming back". She said that the last time her [sibling] had warned about returning to Pakistan was in March or April 2016. The Tribunal asked the second named applicant about these claims and about the basis for the warnings from her [sibling]. The Tribunal indicated that it would allow the applicants extra time to provide further information about these warnings and to provide any further information to the Tribunal about their claims.
  16. The second named applicant in discussing the differences between the sects that she and a husband belonged to described the [Caste 1] sect as being [details deleted] and she said the [Caste 2] sect were [details deleted] generally.
  17. The first named applicant spoke about the difficulties his wife had faced while living with his family in Pakistan. He described his mother as being very strict and that his mother had on occasions slapped his wife. He also said that his [sibling] had slapped his wife on the face in front of the applicant because she had spoken to the [sibling] and refused to follow a direction from the [sibling]. He spoke about his wife suffering a [health issue] and that the family had called a [health professional] to help the wife in the house and that she had not been allowed to go to hospital. The Tribunal was told that the first named applicant's mother would be "mean" to the second named applicant and as indicated would not allow her to receive proper medical support during her difficulties with her [health issue]. The second named applicant essentially confirmed the claims that she had made about her mistreatment at the hands of her husband's family when she had lived with them in Pakistan.
  18. The first named applicant also told the Tribunal that he had avoided harm when he had returned to Pakistan on the two occasions after his marriage by essentially staying at home.
  19. The first named applicant told the Tribunal that he did not have any comments in relation to the delegate's record of decision.
  20. He told the Tribunal that he wanted his family to stay in Australia to be safe. He told the Tribunal that he had practised his religion in Pakistan once or twice a month but he does not practice his religion in Australia.
  21. The Tribunal asked why the family of his wife's cousin and their friends would now seek to harm the applicant and his family if they returned to Pakistan. The applicant said that he was afraid that the cousin could harm his children and claimed that the cousin would "not forget" which the Tribunal understood to mean that the cousin continued to carry resentment about the marriage of the applicants.
  22. The Tribunal referred to a background paper dated February 2014 which was available to the Tribunal and which referred to marriages and divorces and births and deaths in Pakistan and included information about arranged marriages and forced marriages in Pakistan (see background paper: Pakistan: marriage, divorce, births and deaths issued in February 2014 and revised in July 2014). The Tribunal noted that the background paper indicated that marriage without the consent of both spouses is illegal in Pakistan and that young girls are particularly vulnerable to forced marriage. The paper indicated that the vast majority of marriages in Pakistan are arranged. The paper indicates that the BBC reported that an estimated 900 women were killed in honour killings in Pakistan in 2012 but that not all of those killings related to marriage or relationships. The BBC report indicated that in Pakistan family honour was closely tied to the behaviour of females but that report in January 2012 also said that it was also common for families to kill the male partner. The background paper also indicated that Pakistani police had a mixed record in relation to providing protection to couples at risk of harm by family members.
  23. The DFAT country report for Pakistan dated January 2016 noted that with the exception of Pakistan's Ahmadi community most Pakistanis are able to practice their religion freely although opportunities for religious freedom are generally greater in large urban centres than rural areas. The Department assessment is that there is generally a low level of official discrimination in Pakistan on the basis of religion but there is a moderate level of societal discrimination. The country report indicates that since September 2013 ranger paramilitary operations aimed at dismantling extensive militant and politico-criminal networks in Karachi have reduced the number of militant attacks and lessened the activities of criminal syndicates. According to official statistics there has been a 73% reduction in the number of targeted killings and an 85% reduction in the number of kidnapping for ransom incidents in Karachi in 2015. The report indicated that the Department does not yet have sufficient information to assess the sustainability of this downward trend in relation to crime statistics. The country report indicated in relation to state protection that Pakistan's laws and Constitution provide for state protection but the Department assessment is state protection is limited by resources and in some cases political will and personal means. The report also indicates that there are variations in the effectiveness of individual police forces in Pakistan and the capacity to maintain law and order is generally limited by a lack of resources, poor training, insufficient and outmoded equipment and manipulation by superiors and political actors and the judiciary. Relevantly in relation to the applicants claims the background paper referred to by the Tribunal indicates that Pakistani police have a mixed record in relation to providing protection to couples at risk of harm by family members (see page 22 of the background paper).
  24. The country report indicates that the Constitution guarantees the right to freedom of movement in Pakistan and that there is a high level of internal migration. The report notes that because of Pakistan's size and diversity there are viable relocation options for members of most ethnic and religious minorities and that many large urban centres such as Karachi, Lahore and Islamabad are home to mixed ethnic and religious communities and offer a greater degree of anonymity and the opportunity for victims to seek refuge from nonstate instigated discrimination or violence as well as better employment prospects and access to services and state protection than smaller urban areas or rural areas. The country report notes that the security situation in Lahore remains better than many other places in Pakistan, with lower levels of generalised and sectarian violence than many other major population centres. The Tribunal noted that the security situation varies between Pakistan's provinces and autonomous regions. The country report noted Punjab remains relatively free of sectarian and generalised violence while the level of violence is greater in Sindh and Balochistan and the federally administered tribal areas. Urban areas tend to be more secure than rural areas in the country report notes that organised and violent crime such as robbery and kidnapping for ransom occurs throughout Pakistan. The country report indicates that while exact figures are not available the counterterrorism military operations operations which encompassed the paramilitary ranger operations in Karachi had substantially reduced the level of serious crime throughout Pakistan
  25. The country report indicates that document fraud is endemic in Pakistan and that there is credible evidence of police in Pakistan accepting bribes to verify fraudulent first information reports. The report notes that the existence of a first information report does not therefore constitute evidence that the described events actually occurred. The report also notes that the Department assessment is that individuals are not subject to discrimination or violence on the basis of having spent time in the West. The Report also indicates that in relation to women that in rural and tribal areas the traditional justice system is more prevalent than the formal justice system and that these rigid cultural traditions deny women their legal rights and failed to protect them from discrimination or abuse. The report refers to a traditional practice in some areas where women are given away as brides to resolve a dispute between families. The Department assessment is that women and girls are increasingly marginalised in Pakistani society. As indicated the Tribunal had also referred to information contained in the background paper dated February 2014 in relation to arranged and forced marriages.
  26. The first named applicant responded to the country information by claiming the position in Pakistan was now worse in 2016 than was referred to in the information referred to by the Tribunal. He claimed the position for generalised violence was worse in his home area in Pakistan. He referred to an increase in child kidnappings in Lahore.
  27. The Tribunal referred to concerns that it had about the applicant's claims and their evidence. The Tribunal indicated that it had a concern that the applicant's did have a well-founded fear of harm if they returned to Pakistan. The Tribunal noted its concerns about the delay by the applicants in applying for a protection Visa in Australia. The Tribunal noted that the first named applicant had travelled back to Pakistan twice after he was married and that returning to Pakistan was not consistent with his claim to fear harm in Pakistan. The Tribunal indicated that it had a concern that the applicants were seeking a better life in Australia rather than fearing harm in Pakistan. The first named applicant responded by saying that he did fear harm in Pakistan. The Tribunal indicated that it would have to consider relocation if it formed the view that the applicants did have a well-founded fear of harm in their home area.
  28. The Tribunal initially allowed the applicant's until 13 October 2016 to provide any further information to the Tribunal. A registered migration agent who was acting on behalf of the applicants sought an additional two weeks to provide further information and including information from Pakistan to the Tribunal. The Tribunal allowed until 27 October 2016 for that to occur. The Tribunal was subsequently provided with some written submissions on the applicant's behalf together with a number of reports in relation to court decisions in Pakistan in relation to honour killings together with a media article relation to child kidnapping in Pakistan. The Tribunal was also provided with medical documentation in relation to the second named applicant's current pregnancy as well as an affidavit from the second named applicant's [sibling] in Pakistan. A birth certificate for the third named applicant was also provided. There was also a letter from a friend of the first named applicant in relation to events in Pakistan involving the first named applicant. In summary the submissions referred to the Department delegate's decision to reject the applicant's protection Visa application and provided comments in relation to aspects of the delegate's findings where there was disagreement with those findings. The affidavit from the second named applicant's [sibling] was overall short and did not refer to any specific threats that had been made to the applicants but essentially indicated that the [sibling] remained concerned about the applicants welfare if they returned to Pakistan on the basis of having engaged in a marriage of choice and there were people in Pakistan who would not forgive or forget the applicants for having entered into such a marriage. The letter from the friend of the first named applicant appeared in essence to refer to the incident (without providing detail in relation to dates) which the applicant's had given evidence about to the Tribunal which occurred shortly after their marriage and according to the applicants involved the cousin of the second named applicant. Where relevant those submissions and documents will be referred to further in these reasons.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. On the basis of the materials and information provided to the Department and Tribunal the Tribunal accepts that the applicants are Pakistani citizens and that their identities are as they claim them to be. The Tribunal accepts, without evidence to the contrary, and on the basis of the information and materials provided that the applicants do not have a right to enter or reside temporarily or permanently in any other country apart from Pakistan. The Tribunal accepts, without evidence to the contrary, the second and third named applicants are members of the same family unit as the first named applicant. The Tribunal accepts that Pakistan is the applicants country of nationality for convention purposes.
  2. The applicants are seeking protection in Australia on the basis of having engaged in a love marriage in Pakistan and that marriage also involved caste/sect issues. The first and second named applicants are seeking protection on the basis of being members of a particular social group in terms of having engaged in that love marriage and that marriage involving caste/sect issues. The second and third named applicants also seek protection on the basis of being members of the same family unit as the first named applicant. The claims of the first and second named applicants have been referred to elsewhere in these reasons. The Tribunal on the basis of its assessment of the evidence and information before it accepts that the first and second named applicants did engage in a so-called "love marriage" in Pakistan.
  3. The Tribunal has referred to the evidence provided by the first and second named applicants during the Tribunal hearing. The Tribunal notes that in essence the first named applicant claimed that there were three occasions after he married the first named applicant where he was involved in confrontations with either the second named applicants cousin or with friends or associates of that cousin. The Tribunal notes that on the evidence the second named applicant was engaged to be married to that cousin but instead married the first named applicant. The first and second named applicants claim that because they engaged in a love marriage and involving different castes or sects they risk harm if they returned to Pakistan. Both claimed they feared harm from the cousin and his family and including his [Relative 1]. Neither of those applicants claimed they feared harm from their parents. The second named applicant did say in her evidence that she was "paranoid" about her husband's family. The Tribunal understood that to be a reference to her fear that she or her immediate family would be subject to harm or mistreatment by her husband's family if she returned to Pakistan. The Tribunal understood that fear to be based on the claimed previous harm and mistreatment she had suffered at the hands of her husband's family.
  4. The Tribunal notes that there was some inconsistency in terms of the evidence provided by the first named applicant and the evidence provided by the second named applicant about incidents of harm involving the cousin and his friends and associates. The Tribunal notes that the first and second named applicants evidence about the first incident of harm from the cousin is broadly consistent. Both claimed the first incident involved the cousin and some of the cousin's friends/associates confronting the first and second named applicants shortly after their wedding in Pakistan. Both the applicant's referred to firearms being carried by the cousin and or his friends/associates on that occasion and both referred to the second named applicant pleading with the cousin not to harm the applicants. The first named applicant claimed that a gun had been pointed at his head on that occasion and that the cousin threatened to kill them if he saw the applicants again. The first named applicant claimed that there was a further occasion shortly after the first occasion where he was assaulted by associates of the cousin. The first named applicant also claimed that when he returned to Pakistan in May 2013 because of his [injury] problem that he was at a hospital with some friends and his wife when he was again confronted by the cousin and physically grabbed by the cousin. He claimed the cousin was armed with a rifle on that occasion. He claimed his friends intervened to stop the cousin assaulting him. The second named applicant said she was not at the hospital on that occasion because she was not allowed by her in-laws to attend the hospital with her husband. She did tell the Tribunal that there was another occasion before she and the first named applicant got married where she believed that her now husband was confronted by her cousin. The first named applicant in his evidence to the Tribunal did not refer to that incident. The Tribunal notes that the delegate's record of decision (paragraph 2, page 14 of the decision record) refers to both applicants telling the delegate that no further threats were received once they were married and not referring to the claimed incidents referred to in their evidence to the Tribunal.
  5. The Tribunal has considered the applicants evidence about these claimed events. The Tribunal has considered the inconsistencies that have been referred to but is prepared to give the applicant's the benefit of the doubt and is prepared to accept that there were incidents after the marriage where they were confronted with harm by the second named applicant's cousin and or his associates. The first named applicant told the Tribunal that he had reported the first incident (shortly after their marriage) to the police in Pakistan but he had not reported the further two incidents that he claimed occurred. He was not able to produce any documentation to the Tribunal in support of the claim about reporting the first incident to the police. The Tribunal is also prepared to accept the applicant's claims that they fear harm from the cousin and his associates and the wider family of the cousin in particular the [Relative 1]. Neither the first or second named applicants claim to fear harm from their parents.
  6. The Tribunal has considered the credibility of the applicants and the credibility of their claims. In particular the Tribunal found the second named applicant to be credible in giving her evidence in support of her claims and the claims of her husband. The Tribunal found the second named applicant did not seek to exaggerate or inflate her claims in terms of what she said occurred when she was in Pakistan and also provided additional evidence about various aspects relevant to the applicants claims. The Tribunal after considering the totality of the evidence and information finds that overall the applicants are credible witnesses in relation to their claims. In those circumstances the Tribunal accepts that there were incidents after the applicants married where they faced threats of harm from the second named applicants cousin and/or his associates/friends. The Tribunal accepts that on at least one of those occasions firearms were present and were carried by the cousin and/or his associates. The Tribunal also notes the photograph produced to the Tribunal by the applicants(which has been referred to elsewhere in these reasons) which shows the cousin in the company of military/police at the time when he was said to have been arrested because of his [conducting criminal practices]. The Tribunal is also prepared to accept the applicants evidence that the cousin was detained for about a week but was then released by the authorities in relation to that incident.
  7. The Tribunal accepts the second named applicant's evidence that the cousin is frequently armed with firearms and that she is afraid of [him]. The Tribunal also accepts the second named applicant's evidence that on a previous occasion the cousin had threatened to harm her if she continued to engage in tertiary education. The Tribunal also accepts the claims that the cousin threatened to kill the applicants at the incident shortly after their marriage if he saw them again. The Tribunal notes the first named applicant's evidence that the May 2013 incident involving the cousin (outside the hospital) was the last occasion on which he faced a threat from the cousin. He returned to Pakistan in March 2014 to travel with the second named applicant to Australia. He did not claim to have faced any difficulties or threats from the cousin on that occasion. The first and second named applicants told the Tribunal that they believe that they avoided harm by essentially remaining within the family home when they were in Pakistan.
  8. The Tribunal based on its assessment of the evidence and information before it is does not accept the claim that the applicant is at risk of harm from [Relative 1]. There is no evidence before the Tribunal that indicates that [Relative 1] has been involved in threatening harm or causing harm to the applicants. The Tribunal notes that the applicants claimed that [Relative 1] had influence within wider Pakistani society and within Pakistani political circles and they feared harm on that basis and including if they relocated elsewhere in Pakistan away from their home area. As indicated the Tribunal, on its assessment of the evidence, does not accept the claim that [Relative 1] would seek to harm the applicants if they returned to Pakistan.
  9. The Tribunal after considering the evidence in relation to the applicants family notes that members of both immediate families attended the wedding of the applicants. In those circumstances the Tribunal does not accept the applicants claims that both families did not accept the marriage and by implication may seek to do harm to the applicants because of that "love marriage". The Tribunal is prepared to accept that members of both families may not have supported the marriage but is not prepared to accept on the evidence that members of the immediate families would seek to harm the applicants because of that marriage. The Tribunal has also considered that aspect in the context of the applicant's claims that she was mistreated when she lived with the first named applicant's family after her marriage
  10. The Tribunal has considered the evidence in relation to the first and second named applicant's claims that the second named applicant was harmed and mistreated by the first named applicant's family when she lived with them in Pakistan after her marriage. Both the first and second named applicants gave evidence to the Tribunal about that claimed harm and mistreatment. The Tribunal after considering the totality of the evidence is prepared to accept that the second named applicant was physically hit/slapped by her mother-in-law and her [sibling]-in-law as claimed by the applicants. It is also prepared to accept that the second named applicant had restrictions placed on her movements and her activities when she lived with the family. The Tribunal is also prepared to accept the claims that the family restricted her access to medical facilities at the time when she suffered a [health issue]. The Tribunal's assessment after considering the evidence and the country information before it believes that the mistreatment of the second named applicant may have been the result of an attitude about women by some Conservative Pakistani sects or castes and Conservative Pakistani religious groups as opposed to being caused by opposition to the applicant's marriage. The Tribunal also notes the second named applicant is a well educated woman who apparently pursued higher education in the face of opposition from her cousin(and perhaps other members of her wider family). The Tribunal notes the country information that has been referred to in terms of the DFAT country report that assesses that women and girls are increasingly marginalised in Pakistani society and that they face a high level of societal discrimination in relation to employment opportunities, family decision-making and violence against women (see also country of origin information report, European Asylum support office, Pakistan country overview August 2015 - "situation of women "page 72). It is that context the Tribunal understands the second named applicants reference to being "paranoid" about her husband's family.
  11. The Tribunal has considered the evidence in relation to the significant delay by the first named applicant in making a protection Visa application in Australia. The evidence and background about that issue has been referred to elsewhere in these reasons. The Tribunal raised its concern with the applicants about that delay. The delay did not indicate to the Tribunal that the applicants feared harm if they returned to Pakistan. The first named applicant said that he had been essentially assuming that he would be able to extend his student Visa in Australia and apply for residency in Australia and on that assumption he had not thought about returning to Pakistan. His application to extend his student Visa encountered difficulties and he and the second named applicant only turned their minds to the issue of returning to Pakistan when they were informed that they had one week to leave Australia. The second named applicant said that she and her husband were unfamiliar with the migration system in Australia and found out about a protection Visa when the first named applicant's student Visa extension application encountered difficulties.
  12. The Tribunal has also considered the issue of the first named applicant returning to Pakistan on two occasions after his marriage and after he claimed he was threatened with harm by his wife's cousin or the cousins colleagues/friends. The Tribunal raised its concerns with the applicant about those return visits and indicated that his return to Pakistan in those circumstances was not consistent with his claim that he feared harm in Pakistan. The first named applicant's explanation for the return to Pakistan for a period of about three months was because he had [suffered an injury] and was unable to work in Australia and therefore was not able to pay his accommodation expenses in Australia and he also said that medical treatment in Australia was too expensive in relation to his [injury]. He stayed in Pakistan on that occasion for approximately three months and returned to Australia in July 2013. His return on the second occasion was to travel to Australia with his wife. He remained in Pakistan for about four weeks on that occasion. His wife also confirmed that she had not travelled outside Pakistan before coming to Australia. On the basis of the first named applicant's evidence and his travel movements he spent about 4 months in Pakistan during the period from April 2013 to early March 2014. That length of time in Pakistan during that period causes the Tribunal concern about the applicant's claims that he feared harm in Pakistan. He and the second named applicant gave evidence about the incidents involving her cousin and the threats of harm by the cousin and the cousin's associates. Both the first named and second named applicants claim that they avoided further harm or threats of harm in Pakistan by essentially remaining home for most of the time that they were in Pakistan after their marriage. As indicated the Tribunal accepts that there were incidents of harm and threats of harm from the cousin directed towards the first and second named applicants.
  13. The Tribunal after considering the totality of the applicant's evidence and claims and its assessment of their credibility is prepared to accept that the first and second named applicants were not aware of the protection Visa process before the difficulties arose in relation to the consideration of an extension of the first named applicant's student Visa. The Tribunal has also considered the explanation provided by the first named applicant in relation to his two return visits to Pakistan after his marriage and is prepared to accept as reasonable his explanation for why he returned to Pakistan on those two occasions notwithstanding his claim that he feared harm in Pakistan. The Tribunal is also prepared to accept that the first and second named applicants were able to minimise their exposure to a risk of harm in Pakistan by essentially remaining within the family home for most of the period they were in Pakistan after their marriage.
  14. The Tribunal has considered the totality of the applicant's claims and evidence and has had regard to country information that has been referred to elsewhere in these reasons. The Tribunal has also been provided with further information by the applicant's registered migration agent in relation to honour killings in Pakistan. The Tribunal notes that in the Background Paper referred to elsewhere in these reasons in relation to marriage, divorce and births and deaths in Pakistan reference is made to the vast majority of marriages in Pakistan being arranged marriages and the Asian Human Rights Commission describes the right of women to marry out of choice in most of Pakistan as "taboo" and that women who break this taboo are often killed in the name of family honour and that family members who perpetrate such killings often go unpunished(Asian human rights commission 2013," a woman who chose to marry of her own choice is living under the threat of death by honour killing" 8 November). In the applicants case the fear of harm comes from the second named applicant's cousin and his family and associates. The second named applicant also indicated that she feared harm of a possible acid attack or that her child (or children) might be subject to kidnapping or harm.
  15. The Tribunal after considering the totality of the applicant's evidence and having considered the claims both individually and cumulatively and the country information is prepared to accept that the first and second named applicants have a well-founded fear of harm on the basis of being members of a particular social group in that they engaged in a love marriage and between different castes/sects in Pakistan. The Tribunal accepts after considering the totality of the evidence and information that has been referred to that the first and second named applicants face a real chance of serious harm on that basis if they returned to their home area in Pakistan either now or in the reasonably foreseeable future. The information before the Tribunal is that the applicants home area is [in] the Punjab and that both the first and second named applicants come from different castes or sects in Pakistan. The source of the feared harm is the second named applicants cousin and his friends and associates or other members of his family. As indicated the cousin was previously engaged to the second named applicant but she ended that relationship and married the first named applicant. The evidence and information before the Tribunal is that the engagement between the second named applicant and her cousin was an arranged relationship within her wider family. The Tribunal accepts she rejected that arrangement and engaged in a love marriage with the first named applicant.
  16. The country information referred to elsewhere in these reasons indicates that the Pakistani police have a mixed record in relation to providing protection to couples at risk of harm by family members. In those circumstances the Tribunal is not satisfied that the applicants could rely on effective state protection in their home area if faced with real chance of serious harm from the second named applicants cousin or his friends and associates or other members of his family.
  17. The Tribunal in those circumstances has considered whether in the first and second named applicants particular circumstances it would be reasonable for them to relocate to another part of Pakistan where there was no appreciable risk of the occurrence of that persecution. The applicants claimed that their child (or children) could be at risk of kidnapping in Pakistan because the family had lived in the West and could be perceived to be wealthy. The DFAT country report for Pakistan indicates that those individuals who have spent time in the West are not subject to discrimination or violence on the basis of that issue. However the country report also indicates that while there has been a reduction in the number of kidnapping for ransom incidents in Karachi in 2015 because of the Ranger paramilitary operations that organised and violent crime such as robbery and kidnapping for ransom occurs throughout Pakistan but that police and military operations which include the Ranger operations in Karachi have substantially reduced the level of serious crime throughout Pakistan. The Tribunal also notes the country information provided on the applicant's behalf by their registered migration agent.
  18. The applicant's evidence to the Tribunal when they were asked about relocation was in summary that they would not be able to sustain themselves or their family elsewhere in Pakistan. They claimed that the first named applicant would have difficulty in obtaining employment that would allow him to support his family and that they would have difficulty meeting accommodation and living expenses elsewhere in Pakistan. The Tribunal notes that the first named applicant has previously worked as an [Occupation 1 at] [an employer] in Pakistan but that he had not completed his course of study in Australia. He told the Tribunal that he had not worked for the last two years in Australia and relied on [two agencies] to support his family. He told the Tribunal his employment history in Australia consisted of having worked as [two specific occupations]. He told the Tribunal that he had not completed his studies in Australia and he had no savings and he had no money to travel and he did not believe he could support his family if they returned to Pakistan and relocated. The second named applicant is university educated but her employment history appears to be limited to working as a [casual employee] on occasions in Pakistan. The applicants have one child (the third named applicant) and the second named applicant is pregnant and likely to give birth in the relatively near future. She told the Tribunal that she did not think she would be able to secure employment because she would need to look after her children The evidence and information before the Tribunal is that their families and possible support networks are in their home area and the Tribunal does not have evidence and information that indicates that they would be able to rely on family or support networks elsewhere in Pakistan or even in their home area.
  19. The evidence before the Tribunal indicates that it is unlikely that the applicant's would receive much family support or assistance if they returned to Pakistan. The second named applicant remains in touch with a [sibling] who provided a short statement in support of the applicants claims but the evidence of the first and second named applicants does not indicate or suggest to the Tribunal that it is likely that they would receive much, if any, family support if they returned to Pakistan and relocated or even returned to their home area. As indicated the second named applicant said she was "paranoid" about her husband's family .As well the country information indicates that the security situation varies between Pakistan's provinces and autonomous regions and while the Punjab remained relatively free of sectarian and generalised violence there are other areas within Pakistan where the level of violence is greater. The country information indicates that urban centres also tend to be more secure than rural areas and urban areas provide a greater opportunity for employment and other services than rural areas.
  20. The Tribunal notes the applicants claims that they were fearful of the second named applicants [Relative 1] who they said had political influence and wider influence in Pakistan. As indicated the Tribunal does not accept that there is any evidence before it other than the applicant's claims that [Relative 1] may use influence to cause harm to the applicants if they returned to Pakistan and either lived in their home area or relocated. As indicated the applicants did raise concerns about the level of generalised violence in Pakistan in terms of being concerned about kidnappings and risks of harm to the applicants and their children. The Tribunal has considered available and relevant country information and also considered whether it would be reasonable for the applicant's to relocate elsewhere in Pakistan away from their home area to avoid a real chance of serious harm because of their membership of a particular social group. The Tribunal considers that the applicant's have a well-founded fear of harm in their home area on the basis of the membership of a particular social group and that aspect has been considered and discussed. The Tribunal finds after considering the totality of the applicant's claims and the evidence and country information that the applicants would be able to avoid a real chance of serious harm on the basis of their membership of a particular social group if they relocated to another part of Pakistan such as Hyderabad. Hyderabad is Pakistan's fifth largest city and one of the country's main commercial hubs and it offers a greater range of employment and housing.
  21. The Tribunal has also considered whether it would be reasonable in the circumstances of the applicants particular circumstances for the applicants to relocate within Pakistan. The Tribunal has had regard in considering the issue of reasonableness in terms of relocation to the decision of the Federal Court of Australia in MZACX .v. Minister for Immigration and Border Protection [2016] FCA 1212 (12 October 2016) in considering the actual circumstances of the applicants in terms of relocation. The Tribunal has referred to the first and second named applicants claims and evidence that they would not be able to support their family if they were required to return to Pakistan and relocate. The Tribunal has considered that evidence. The Tribunal after considering the evidence accepts that relocation in the context of the applicant's particular circumstances would not be reasonable in order for the applicants to avoid a real chance of serious harm if they were to return to Pakistan either now or in the reasonably foreseeable future.

Overall Summary

  1. 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 of the Migration Act.

DECISION

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

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

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


James Jolliffe
Member

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