1928875 (Refugee)

The applicants, Pakistani nationals of Hazara Shia Muslim ethnicity from Quetta, sought protection in Australia. Their claim for protection was based on their fear of persecution due to their ethnic and religious identity, exacerbated by witnessing a publicly reported attack and subsequently receiving threats after reporting the incident to the police. The second applicant is married to an Australian citizen and has Australian citizen children. The case was heard by Fraser Robertson.

The central legal issues before the court were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as refugees, or alternatively, under section 36(2)(aa) as individuals facing a real risk of significant harm if removed from Australia. This involved assessing the credibility of the applicants' accounts, considering country information regarding the situation for Hazara Shia Muslims in Pakistan, and determining the availability and reasonableness of relocation within Pakistan.

The court applied principles of assessing the credibility of asylum seekers, acknowledging the inherent difficulties and the need for careful, fair, and reasonable processes, particularly when accounts are given through interpreters or in circumstances of distress. The court found that while the applicants' accounts of witnessing the attack and subsequent threats were credible and detailed, the criterion for refugee status under section 36(2)(a) required a real chance of persecution in all areas of the receiving country. However, the court found that the applicants faced a real risk of significant harm in Quetta and that it would not be reasonable to require them to relocate to Karachi, thus satisfying the complementary protection criterion under section 36(2)(aa).

The court remitted the application for reconsideration with a direction that the applicants satisfy the criterion under section 36(2)(aa) of the Migration Act.