1401348 (Refugee)

This matter concerned an application for a protection visa by a male applicant from Pakistan. The applicant claimed to have been abducted and tortured by the Taliban, and feared persecution upon return to Pakistan due to his ethnicity and religion. He also presented evidence of his father's death and his own psychological condition, including a diagnosis of Post Traumatic Stress Disorder and Panic Disorder.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically whether he was a person in respect of whom Australia had protection obligations under the 1951 Refugee Convention. This required the Tribunal to determine if the applicant had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and if the state was unable or unwilling to protect him. A further consideration was whether it was reasonable for the applicant to relocate to another part of Pakistan to avoid persecution.

The Tribunal reasoned that the applicant had a well-founded fear of persecution by non-state actors, specifically the Taliban, due to his Shi’a religion and Pashtun ethnicity. It found that the persecution he risked would involve significant physical harassment and ill-treatment, constituting "serious harm" as defined by the Act. The Tribunal was satisfied that the fear was based on systematic and discriminatory conduct. Crucially, the Tribunal concluded that it was not reasonable or practicable for the applicant to relocate to another part of Pakistan, given the pervasive nature of the threats and the state's inability to offer protection.

Accordingly, the Tribunal found that the applicant had a well-founded fear of Convention-related persecution and was a person in respect of whom Australia had protection obligations. The Tribunal was satisfied that the applicant met the criterion set out in section 36(2)(a) for a protection visa.