1606800 (Refugee)

The applicant, a citizen of Afghanistan, sought a Protection (Class XA) Subclass 866 Visa. The dispute centred on whether the applicant had a well-founded fear of persecution in Afghanistan due to his Hazara ethnicity and Shia Muslim religion, as well as fear of harm from criminal elements who had murdered a family member. The applicant also claimed fear based on imputed political opinion and membership in particular social groups. The matter was before the Tribunal for reconsideration.

The primary legal issue was to determine if the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution under section 36(2)(a) of the Migration Act 1958, or alternatively, if Australia had protection obligations under the complementary protection criterion in section 36(2)(aa). This involved assessing the risk of significant harm upon removal from Australia, considering the applicant's personal circumstances and the general country information regarding Afghanistan.

The Tribunal considered policy guidelines and country information assessments, noting that the situation in Afghanistan had deteriorated. It found that recent sectarian attacks, including those claimed by the Islamic State and targeting Shia Muslims and Hazaras in Kabul, indicated a heightened risk. Expert opinion suggested that Kabul was not safe for Hazaras and that the antagonism towards this group was a persistent issue. The Tribunal concluded that the threat to the applicant was not localised and that relocation within Afghanistan was not a viable option to avoid persecution.

Based on the applicant's profile and the country information, the Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies this criterion.