1722699 (Refugee)

The case concerned three children, born in Australia to Pakistani parents, who applied for protection visas. The applicants claimed they would face persecution in Pakistan due to their Shia Muslim faith, their gender (for the female applicant), their status as returnees, their grandparents' divorce, and their mother's mental health issues, which could lead to them suffering harm from her or discrimination due to her condition. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which involves being a refugee with a well-founded fear of persecution.

The Tribunal considered the applicants' claims in light of the definition of a refugee and the concept of a well-founded fear of persecution, which requires a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also had regard to the Ministerial Direction No. 84, which mandates consideration of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information from the Department of Foreign Affairs and Trade. The core of the dispute involved assessing whether the specific circumstances of the applicants, particularly as Shia children in Pakistan with a mother experiencing mental health issues, constituted membership in a particular social group and whether they faced a real risk of persecution or significant harm that the Pakistani state could not or would not protect them from.

The Tribunal found that the applicants were persons in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act. The decision indicates that the Tribunal was satisfied that the applicants had a well-founded fear of persecution. Consequently, the Tribunal remitted the matters for reconsideration with a direction that each applicant satisfies section 36(2)(a) of the Migration Act.