2106145 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa. The applicant, who arrived in Australia by boat at Ashmore Reef in April 2013, claimed to be of Hazara ethnicity and a Shia Muslim from Pakistan. He asserted that he had faced threats and violence due to his ethnicity and religion, and that his former occupation as a police officer further placed him at risk. The AAT was required to determine whether the applicant met the criteria for a protection visa, specifically whether Australia had protection obligations towards him.

The central legal issue before the Tribunal was whether the applicant qualified for protection under the Migration Act 1958 (Cth). This involved assessing both the refugee criterion under section 36(2)(a) and the complementary protection criterion under section 36(2)(aa). The Tribunal had to consider the applicant's claims of persecution based on his ethnicity, religion, and past occupation, and whether these claims established a well-founded fear of persecution or a real risk of significant harm if returned to Pakistan. A key aspect of the assessment involved determining if relocation within Pakistan or access to state protection would mitigate any such risks.

The Tribunal found the applicant to be a credible witness, accepting his evidence regarding his circumstances in Pakistan, including the threats he faced as a Hazara Shia Muslim and a police officer. While the Tribunal concluded that the applicant did not meet the refugee criterion under section 36(2)(a), it was satisfied that he met the complementary protection criterion under section 36(2)(aa). The Tribunal reasoned that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Pakistan, the applicant faced a real risk of suffering significant harm.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act. This means that Australia has protection obligations towards the applicant under the complementary protection provisions.