Tribunal: Member Paul Windsor

An application made by a family of three for Protection visas was refused by a delegate of the Minister for Immigration and Border Protection. Applicant 1 was making a claim for protection and applicants 2 and 3 applied as members of the family unit. On 24 January 2018, the Administrative Appeals Tribunal remitted the matter for reconsideration by the Department.

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a Protection visa. Broadly, it requires the applicant to be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. In basic terms, this arises when a person is found to have a ‘well-founded fear of persecution’ or there is a ‘real risk of significant harm,’ respectively.

The criteria relevant to this decision were the other ‘complimentary protection’ grounds. In relation to this, the delegate was not satisfied applicant 1 faced a real risk of significant harm if returned to Pakistan.

Applicant 1 arrived in Australia from Pakistan in 2010 on a Student visa. Arriving with him, and included on the same application as members of the family unit, were his mother (applicant 2) and younger brother (applicant 3). Applicant 1 claims that in Pakistan he was detained by police in relation to the death of one of his relatives (relative A). He was charged, placed in jail and, while there, physically and mentally tortured, and forced to confess to the killing. A court found him not guilty and upon his release he came to Australia out of fear he would again be jailed because a wealthy and powerful relative of his (relative B) was bribing officials to appeal the decision in revenge for the death of relative A. The applicant feared that if returned to Pakistan he would spend all his life in prison being tortured or suffer the death penalty.

The Tribunal considered whether or not there was a real risk applicant 1 would suffer significant harm if returned to Pakistan. Section 36(2A)(c) of the Act includes torture within the definition of ‘significant harm’.

There were two critical considerations for the Tribunal. The first was the fact that the delegate had not accepted that the appeal made by relative B was ongoing, finding that the term ‘disposed of,’ used by the Court in an entry in March 2013, meant the case had ended. This would be a significant factor because, if proven, it would be less likely for the applicant to be at risk of torture if returned. The Tribunal initiated its own inquiries into the status of the appeal, including the meaning of the term ‘disposed of’ in the context of the court. After reviewing the findings of the investigation, the Tribunal was satisfied that the matter was still active and that the term ‘disposed of’ meant the case was in abeyance, as the applicant had departed Pakistan.

Secondly, the Tribunal also considered the risk of torture if applicant 1 was returned to Pakistan. It considered Human Rights Watch and Department of Foreign Affairs and Trade country information reports which indicated that the police in Pakistan are plagued by corruption and around 80 per cent of prisoners in police custody were tortured in 2015, along with remarks made by the acquitting judge, and found they supported applicant 1’s claims that the case against him was fabricated because the police were paid bribes by Relative B. The Tribunal further found there was a real risk applicant 1 could be detained by the authorities if he returned to Pakistan and stated it could not rule out the possibility that there was a real risk applicant 1 would suffer torture at the hands of Pakistani police if returned.

After careful consideration of the preceding critical issues, in addition to findings that applicant 1 could be subject to harm from relative B and the death penalty could apply to the case, the Tribunal found that there were substantial grounds for believing that, as a necessary and foreseeable consequence of applicant 1 being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm in the form of torture.

The Tribunal remitted the matter for reconsideration with the direction that applicant 1 satisfied section 36(2)(aa) of the Migration Act 1958 and applicants 2 and 3 satisfied section 36(2)(c)(i).

Read the full written decision on Austlii.