Australian Immigration Daily News

In this day and age, it is truly shocking, appalling, terrifying and tragic for people from Western societies to contemplate that “honour killings” still occur in other countries (like Pakistan).

Maybe not as shocking as one might prefer to think, in light of the raging epidemic of lethal domestic violence that continues to afflict Australia.  And in light of the raging misogyny freely given voice to by the now “president” of the United States, a person who was elected notwithstanding his own widely publicized (Access Hollywood tape) statements that he believes that his “celebrity” entitles him to treat women as objects and to use them for his own purposes as he sees fit, and the evidence of about a dozen women who came forward to provide accounts of his conduct as a serial sexual predator.

So self-evidently, and incredibly disappointing  and disturbing as it is, the world has not come as far as we might hope in recognizing the rights of women to full equality and to be protected from violence and the threat of violence.

And this is all the more reason why the Tribunal and the Courts must take seriously claims for Protection visas made on the basis that the applicant has a well-founded fear of persecution by reason of being a woman at risk of being subject to honour killing if she were to be returned to her country of nationality.

This issue is highlighted by a case that was decided by the Full Court of the Federal Court of Australia late last year, ARG v Minister for Immigration and Border Protection (2016) FCAFC 174 (9 December 20116). The decision also illustrates that an applicant’s prospects for a positive outcome are not necessarily dashed simply because an application has been refused by the Department, the refusal has been affirmed by the Tribunal, and an initial application for judicial review has been unsuccessful at the Federal Circuit Court level. 

Sometimes, persistence is essential in order to vindicate the applicant’s rights.

So what was the background in this case?

The applicant was a Pakistani woman who was living in Australia. She claimed that during a visit to Australia, her father-in-law had physically abused her by beating her over a period of two months. She also claimed that there had been an incident during which the father-in-law threw crockery at her, grabbed her by the hair, pushed her and hit her.  This incident prompted her to call the police and to seek their assistance and intervention.

The applicant claimed that the father-in-law was a “violent and controlling man” who had “been responsible for two murders”, had threatened to kill her for insulting him by calling the police to the altercation in Australia, and who, as the head of a “jirga” (a tribal assembly that makes decisions according to Islam) had the applicant declared to be a “kari”, a woman who must be killed.

The Tribunal did not accept the applicant’s claims.

It noted that the father-in-law was “educated and urban”, held a very senior corporate position as the vice president of a bank in Pakistan, had brothers who held very senior government positions and that it was therefore “unlikely” that the father-in-law had sought a declaration from a Jirga that the applicant was a “black woman” (“kari”) who should be punished by death.

So, what saved the applicant?

As it turned out, the Tribunal had not referred in its written decision to country information that had been submitted to the Tribunal by the applicant’s solicitor. 

This country information consisted of a report prepared by the British Home Office entitled “Home Office Country Information and Guidance on Pakistan: Women”.

This report contained information that was inconsistent with material that the Tribunal had relied on in reaching its decision. Specifically, the report contained material which stated that the risk of honour killings was not restricted geographically in Pakistan; that the authorities in Pakistan may be unable or unwilling to provide protection for women fearing honour crimes; that legislation against honour crimes was flawed and inadequately enforced;  that jirgas had invoked death sentences against women for honour crimes; and that the police in Pakistan had been reported to be complicit with the perpetrators of honour crimes by avoiding filing cases and destroying evidence.

The Full Court found that the Tribunal had committed a classic species of jurisdictional error by failing to consider the Home Office Report. This jurisdictional error was reflected by the fact that the Tribunal did not refer in its written decision to the material in the Home Office Report.

Significantly, the Full Court found that the material in the Home Office Report that had not been considered by the Tribunal was “cogent and more current as of the date of the Tribunal’s decision” than other country information that the Tribunal did rely upon in rejecting the applicant’s claims.

It all goes to show that, while it may be “trite”, a failure to consider a relevant matter, in this case the most current country information can be absolutely fatal to a Tribunal decision and may be absolutely key to winning an application for judicial review.

I wish to note that enormous credit in this case is due to the lawyers who handled the case for the applicant on a pro bono basis, King Wood Mallesons and Victorian barristers Georgina Costello and Fiona Batten.

They should be enormously proud of the incredible job they did for the applicant!!!!!!!!!