1419288 (Refugee)

The Administrative Appeals Tribunal considered the protection visa claims of Applicant 1, his mother (Applicant 2), and his younger brother (Applicant 3), all citizens of Pakistan. Applicant 1 claimed he had been detained and tortured by police in Pakistan in 2008 in relation to a death, falsely implicated, and subsequently acquitted by a court. He alleged that despite his acquittal, an appeal was lodged, and he feared returning to Pakistan due to ongoing legal proceedings and threats to his family. He arrived in Australia in 2010 on a student visa.

The primary legal issues before the Tribunal were whether Applicant 1 met the criteria for a protection visa, specifically under section 36(2)(aa) of the Migration Act 1958 (Cth) concerning complementary protection, and whether Applicants 2 and 3 were members of Applicant 1's family unit for the purposes of their own visa applications. The Tribunal was required to assess the risk of significant harm to Applicant 1 if returned to Pakistan, considering the availability of state protection and the possibility of internal relocation.

The Tribunal reasoned that while Applicant 1 was acquitted of the charges, the appeal remained pending, and the death penalty could apply if the acquittal were overturned. It considered country information indicating that Pakistan had lifted a moratorium on the death penalty and had become a prolific executioner. The Tribunal found that Applicant 1's experience of police corruption and torture, coupled with the ongoing legal proceedings and the potential for his profile to attract the attention of Pakistani authorities, meant that internal relocation would not remove the real risk of significant harm, including detention and return to police custody. Consequently, the Tribunal was satisfied that there were substantial grounds for believing that Applicant 1 would suffer significant harm in the form of torture if removed from Australia. The Tribunal also found that Applicants 2 and 3 were members of Applicant 1's family unit, with Applicant 2 being a dependent widow and Applicant 3 a dependent student.

The Tribunal remitted the matter for reconsideration with directions that Applicant 1 satisfies section 36(2)(aa) of the Migration Act, and that Applicants 2 and 3 satisfy section 36(2)(c)(i) on the basis of their membership in the same family unit as Applicant 1.