1712009 (Refugee)

This matter concerned an application for a protection visa by a woman and her son, who feared returning to Pakistan. The applicant claimed she feared harm due to her ethnicity as a Hazara, her Shia religious beliefs, her status as a divorced woman, and having a child out of wedlock with a non-Hazara man. The second applicant, her son, was born in Australia but was unregistered with Pakistani authorities due to his parents' unmarried status. The case was heard by Senior Member Denis Dragovic of the Refugee Tribunal.

The central legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for reasons of race, religion, or membership of a particular social group, and whether Australia had protection obligations towards them under the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant's ethnicity as Hazara, her Shia faith, her divorced status, and her child's unregistered status constituted grounds for persecution, and if such persecution would be systematic and discriminatory, involving serious harm, and if internal relocation within Pakistan was a viable option.

The Tribunal considered extensive country information regarding the persecution of Hazaras in Pakistan, noting they face a high risk of violence from sectarian militants due to their distinct appearance and religious beliefs. It also considered the applicant's personal circumstances, including her divorce and having a child out of wedlock, which exacerbated her vulnerability within her community and exposed her to risks of honour killing and social ostracism. The Tribunal found that the applicant's Hazara ethnicity was the essential and significant reason for the harm she faced, with her other circumstances compounding these risks. It concluded that internal relocation was not a safe option, as the Hazara community in Quetta was socially integrated, and Hazaras generally faced high risks throughout Pakistan. The Tribunal also found that the second applicant, as an unregistered child of Hazara ethnicity, faced a real chance of serious harm due to his race and his status as an unregistered child, which prevented access to essential services.

The Tribunal was satisfied that both applicants had a well-founded fear of persecution for reasons of race and membership of a particular social group, and that the persecution would involve serious harm and systematic, discriminatory conduct. Consequently, the Tribunal found that Australia had protection obligations towards both applicants. The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfied the criterion set out in s.36(2)(a) of the Migration Act 1958.