1708390 (Refugee)

The applicant, a national of Pakistan, sought a protection visa on the grounds of a well-founded fear of persecution due to his homosexuality. The dispute before the Administrative Appeals Tribunal (AAT) concerned whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires the Minister to be satisfied that Australia has protection obligations because the person is a refugee. The applicant claimed he would be unable to live openly as a gay man in Pakistan due to criminal law and feared persecution from his family, religious extremists, the general community, and Pakistani authorities.

The primary legal issue before the Tribunal was to determine if the applicant possessed a "well-founded fear of persecution" for reasons of membership in a particular social group (homosexual individuals) under section 5J of the *Migration Act*. This required assessing whether there was a real chance of persecution in Pakistan for this reason, whether such persecution would involve serious harm, and whether this risk related to all areas of Pakistan. The Tribunal also considered the applicant's ability to access effective protection within Pakistan and whether he could take reasonable steps to modify his behaviour to avoid persecution without compromising fundamental aspects of his identity.

The Tribunal reasoned that the applicant's fear of persecution was well-founded. It considered the evidence presented, including the applicant's statements, statutory declarations, and social media screenshots, in light of relevant country information. The Tribunal found that the applicant's homosexuality constituted a characteristic fundamental to his identity and that he could not be expected to conceal it. Furthermore, the Tribunal was satisfied that effective protection was not available to him in Pakistan and that the risk of persecution was not confined to specific areas but extended throughout the country. Consequently, the Tribunal concluded that the applicant met the criteria for a protection visa under section 36(2)(a).

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.