1714169 (Refugee)

1714169 (Refugee) [2022] AATA 5117 (14 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Anna Ryburn (MARN: 9905853)
CASE NUMBER:  1714169
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Christine Cody
DATE OF WRITTEN STATEMENT:         14 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 14 December 2022 at 7:34pm

CATCHWORDS
REFUGEE – Protection Visa – Afghanistan – race – Hazara – religion – Shia Islam –failed relationship with husband– fake Iranian passport – failed asylum seeker – a member of a particular social group –– a member of a group of women alone in Afghanistan without a male supporter – harm from the Taliban government – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act). The applicant initially claimed to be a citizen of Iran, applied for the visa on 17 February 2016.
The case was difficult to assess as it involved changing claims including changed ethnicity (from Khavari to Hazara) and nationality (from Iranian to Afghanistan), consideration as to whether the applicant held more than one nationality and would thus have been barred from making the current protection visa application without permission from the Minister (s.91P of the Act), and numerous untruths and concerns about documents. However, having regard to relevant country information and the applicant’s written and oral evidence, the Tribunal has considered that the core of her current claims is likely to be true, and it is satisfied that: she is a female Hazara, her nationality is that of Afghanistan, and in all the circumstances she meets s 36(2)(a). Arriving at this finding has involved considering a number of Departmental files, including her offshore prospective spouse visa file, her protection visa file, her (previous) prospective spouse’s protection visa file and her current husband’s protection visa files, as well as Departmental notes, inconsistencies arising from multiple written applications and her oral evidence, as well as submissions and numerous documents, including documents relating to asylum claims of her family members in [Country 1], and significant country information researched by the Tribunal.
The Department
The Departmental file contains documents including the applicant’s protection visa application forms, Form 80 (Personal Particulars), a copy of the identification page of the applicant’s Iranian passport, a statement made by the applicant, copies of education records, copies of her marriage and divorce certificates, and the delegate’s decision record.
The applicant was represented by a registered migration agent who provided assistance with completing her forms, Palagiri Sanjay Singh.
The Departmental file does not contain any non-disclosure certificate.
Background and claims before the Department
Written claims
According to the application forms of 16 February 2016, the applicant’s background and claims are summarised below.
The applicant states in her forms that her name is [Name 1], and that she was born in [Suburb 1], a suburb of Tehran, Iran, on [Date 1]. She has never been known by any other names. She is an Iranian citizen and has never been a national or citizen of any other country. She gained her Iranian citizenship through birth.
Both her parents were Afghani citizens. The applicant belongs to the “Khavarhi Afghani” ethnic group and is a Shia Muslim. In her Form 80 she provides details of her parents:
· [Mr A] born [date], born [in] Afghanistan, citizen of Afghanistan, and currently in Afghanistan.
· [Ms B] born [date] in [Afghanistan], citizen of Afghanistan, currently in [Country 1].
Her Iranian birth certificate (Shenasnemeh) (birth certificate number [deleted]) issued [date] states that she was born in [Suburb 1], Iran on [Date 1] to:
·[Mr A]
·[Ms B]
In addition to her Iranian birth certificate, the other identity documents provided by the applicant were her national ID card (no issue date was provided, however there was an expiry date of [date] 2010) which recorded that her father is [Mr A], and some pages of her passport issued by the Iranian authorities [in] 2011 (expired [in] 2016, recording that her father is [Mr A]).
In her Form 80 she provides details of her siblings as follows:
·     [DOB] sibling [Ms C] born in Tehran, an Iranian citizen, currently in Iran
·     [DOB] sibling [name] born in Tehran, an Iranian citizen, currently in Iran
·     [DOB] [Ms D] born in [Tehran], currently in [Country 1]
Her elder sister [is] deceased.
The applicant can read, speak and write Persian and English.
The applicant completed high school [in] [year] in Iran and went on to complete the following degrees from [University 1] (the certificates record her ID reference as no. [and] that her father’s name is [Mr A]):
·     Bachelor [degree] in 2007
·     Masters [degree] in 2009
·     PHD in [2015] at [University 1], Iran; certificate provided dated 2 January 2016.
In her protection visa application form she states that her occupation is lecturer. According to her Form 80 the applicant had worked in Iran from 2012 – 2014 at [University 2] as a teacher and from 2007 – 2010 at [a] [Company].
The applicant listed two previous addresses in Iran (from birth to August 2000 she resided in [Suburb 1], Tehran, and from August 2000 to December 2015/January 2016 she resided in Mashhad).
The applicant states in her Form B that she is “married” to [Mr E] (born in [Afghanistan], who has Australian citizenship). Their relationship began on 20 June 2007 and the date and place of marriage was [October] 2014 in Masshad. They were not allowed to register their marriage in Iran because [Mr E] was a “foreigner”. So she applied for a prospective spouse visa and she left Iran legally using her Iranian passport, which is valid for return to Iran. She travelled to Australia with the intention of marrying [Mr E]. She arrived on [date] January 2016 holding a subclass 300 marriage visa.
After she arrived, [Mr E] ended their relationship.
As a result, if she goes back to Iran she will be blamed, she will not be able to convince her relatives, family, friends and the community what happened and she will be insulted, humiliated, mistreated, mis-judged, and physically abused in Iran and her life will be miserable. Her relatives will not accept her divorce and she will have serious problems in Iran. Her husband is considered [deleted]; people like him and have regard for him as he lives in Australia. She will have no future in Iran.
When she was younger she was under immense pressure to marry in Iran because in her community girls marry very young. She resisted the pressure because she wanted to be an independent educated woman and she did complete her studies. She received few marriage proposals in Iran and if she returns, she will not have any further opportunities to marry.
She has a [PHD], but she will not find employment in Iran due to discrimination. Suitable jobs exist [but] she cannot apply for such positions because there is racism. In order to get such jobs there are many interviews. There is always a preference for those who are Iranian, the prospective employers will search about her parents. They can easily tell that she is not Iranian originally. This is very demoralising. The protection visa application form states that she is unemployed at the time of application [the delegate’s decision record notes that the applicant reported working in Australia at a [workplace] and a [company].
When asked if she experienced harm in Iran, she said yes, she always faced negative attitude towards her tribe/ race in Iran due to appearance like Hazara people in Afghanistan. They immigrated to Iran in ancient years during the previous government of Iran. Nevertheless, they have Iranian identification card, although because of their appearance they have not improved in their social position. So, the Iranian people in other states don’t accept them as one of themselves. The Iran government does not accept them completely. In her childhood in Tehran she had many problems within her school and in society in general. The behaviour of her teachers was always discriminatory, towards an Afghan girl/person. Iranian people did not have friendly relationships with Afghan people at all. Most of them hate the Afghans and bother them a lot. For a young girl that society does not accept, there was no justice or happiness because of racism. When she was a student she was treated unfairly by teachers, including being deprived of joining special programs relating to talented students or preparation tests for university, as they thought she was an Afghan refugee. Their racism meant that they did not encourage her and were not supportive when she did well. She always felt depressed.
She is in contact with her relatives outside Australia via skype or telegram. However, her father is lost in Afghanistan. Her family moved to Mashhad in 2000 because her father thought it would be a better living situation, as people in Mashhad are familiar with her tribe and there is less racism. In Tehran her father had suffered at the hands of employers, and he had been robbed but was unable to seek state protection because “Afghans were considered worse than robbers”. He did not have a valid identification card and worked very long hours, illegally, manufacturing [products]. There were undercover policemen in Mashhad because of the presence of Afghan illegal immigrants, so her father rarely left the house. After 4 years he was exhausted and decided to go to Afghanistan. He went there in 2004, due to the discrimination in Iran and because he heard that he could earn a better income there. His mother received a call when he said he was in [a city], there was no work and he was heading to Kabul; they never heard from him again and they do not know what has happened to him. Her mother immigrated to [Country 1][1] 5 months ago; she has no identification card and suffers from depression due to the absence of her husband.
[1] At interview the applicant said that her sister had gone with their mother
The applicant has no one who can support her in Iran. When asked if she can be protected, she said that due to her “identity”, there is no law or legal way to protect them in Iran. Iran’s policy does not accept people whose grandfather or grandmother or even parents were not born in Iran. Iran just cares about blood not soil. They say if the person’s grandfather was born in Afghanistan, then one’s nationality is Afghan, and the authorities they don’t help at all. They will deport her to Afghanistan if she complains or opposes. Furthermore, because of rigid laws in Iran, she could not register her marriage, because [Mr E] is not Iranian. Now, she cannot do anything against him for her rights. He left her easily without reasonable excuse. And if she returns to Iran she will be ill-treated by people in her community, she doesn’t have her parents there to seek any kind of emotional support or help. She is also concerned that the Iranian laws about identification cards have become more rigid to identify Afghanis, and deport them to their country, or they could be prosecuted and sent to jail. She is not sure if her identification card will be acceptable to the Iranian authorities or not (she does not explain why).
Interview with the delegate 14 March 2017
At the interview the applicant provided her marriage and divorce certificates, and translations, in relation to her marriage to [Mr E]. The marriage certificate is dated [October] 2014 and is stated to be a marriage contract, stating that the wedding will take place when possible. The divorce certificate dated [date] April 2016 states that the applicant was the applicant for divorce, her father’s name is [name] and her brother was a witness.
The delegate put to the applicant that the visa condition was to marry [Mr E], but as she was not going to meet the conditions of the visa, why did she not return to Iran? She indicated that she hoped he would change his mind; she was his wife.
She maintained that her fears were about returning to Iran, based on her failed relationship with [Mr E] and the harm she will suffer due to this, from the community as well as her family, and [Mr E] will also take revenge on her. When asked why she was seeking protection she said the most important reason was that she is a girl who was never married, now her reputation is ruined after divorce, she would be isolated and ostracised. The Afghani Iranian community would not mingle with a girl like her. It will be very hard to be able to get a job and find a place to live for Afghani girl living in Iran. Her Husband is known to be a person who takes revenge.
She also said that in Iran it is hard for her to get a job because of her appearance as she is a Hazara. The delegate noted that she had claimed to be a Khavari. She said her parents were born in Afghanistan, their ethnicity is Hazara. She said that she is defined as Khavari because she was born in Iran and because she has an Iranian birth certificate. She said that her father disappeared in Afghanistan about 11 years ago.
She said that her mother and [sisters] were in [Country 1] and that her brother was in Iran.
The Iranian community does not treat people like her as a member, they look at them differently, they don’t have a similar chance as other members of the community, because of their ethnicity. Because of their faces and ethnicity they will not be treated well, they will be treated as a second class citizen. In Iran they don’t like Afghans.
She said that she doesn’t feel secure because of her husband, and wherever she wants to go, because of her face they might ask to look at documentation. For many this has happened, they have been sent back to Afghanistan. The delegate asked her why she would be sent back to Afghanistan, given that she is a citizen of Iran. She said in Iran, they count a person as Iranian whose parents are Iranian. They could do a simple check and see her parents are from Afghanistan. The delegate repeated that she is a citizen of Iran, and as far as he is aware there is no country information to indicate that the Iranian government is cancelling citizenship because of the ethnicity of a person. The applicant said that they would say from her face it’s obvious she is an Afghan, If they ask for her documentation, they would ask her to bring her parents’ and relatives’ documents and she can’t do that. She said that to get her passport she didn’t need the documentation of her father; she doesn’t have documentation.
Her previous life was close and limited, she couldn’t have a normal life (basic rights, work, marriage, living in society). This would continue if she returned to Iran. Her main reason is divorce, but also she cannot hide her ethnicity or her face. If her face or her appearance was similar to Iranians, it would be easier to get on with life.
She had many problems because of her background; she said that she is smart, but the teachers ignored her, she didn’t have a chance to show herself or her ability. She did not get real opportunities. She did the teaching job as others were not inclined to do this. The delegate put to her that in order to get that doctorate at a very good university, that indicates that she did get support. She suggested she got minimum support and it took her 6 years instead of 4 years to finish her PhD.
The delegate’s decision record
The application was refused by the Department on 06 June 2017. The delegate accepted that the applicant was an ethnic Khavari based on her testimony at interview, her marriage in Iran to an Afghani male and Department records in relation to her prospective marriage visa. Reference was made to a February 2013 joint fact-finding mission report of the Danish immigration Service (DiS), the Danish Refugee Council (DRC) and the Norwegian Country of Origin Information Centre (Landinfo) noting that ‘‘the word ‘khavar’ means ‘east’ and ‘Khavari’ means ‘person from the east’” and "the Khavaris are a group of people with Afghan Hazara or Barbari origins, mostly Shia Muslim”. There are about 2.5 million persons in Iran who are regarded as Khavaris and they are often victims of racially motivated discrimination based on their appearances which often hint to their Afghan Hazara origins. Khavaris with Iranian citizenship face some (though not systematic) discrimination and while they are entitled by law to the same rights as other Iranian citizens, they are treated as “second-class citizens” and are discriminated against both socially and economically, and they face prejudice. Their discrimination is similar to the discrimination faced by people from Afghanistan, irrespective of whether the Khavaris hold Iranian citizenship or live in Iran illegally. [2]
[2] (As cited in the delegate’s decision record) Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD). "Iran: Freedom of Religion;
Treatment of Religious and Ethnic Minorities COI Compilation September 2015", 01 September 2015, CISEC96CF13622
The delegate noted that the applicant claimed to fear that due to her divorce she will be ostracised by her family, friends and the Afghani community in Iran and she will have little opportunity to get remarried as she is a divorced women who is [age] years of age. She was asked why she considers she will be ostracised, and she responded that she has had little contact with her family in Iran. The delegate could not locate country information which supports the applicant’s claim she will be ostracised by the Afghani community due to her divorce. The delegate considered that although the applicant may experience social stigmatisation due to her divorce, it would not amount to persecution. The delegate found it speculative that the applicant would not remarry due to a previous divorce and her age.
Concerning employment, the delegate noted that the applicant claimed that as a woman with an Afghani background it will be difficult for her to live and work in Iran, and that after she completed university degree she sent her resume to various universities, but she did not receive any offers of employment. The Australian Department of Foreign Affairs and Trade (DFAT) reports that women have very high participation rates in higher education but comparatively low rates of participation in the workforce. While accepting that the applicant may have difficulty obtaining employment in Iran related to her field of study, the delegate found that the consequences of the discrimination the applicant would suffer as an ethnic Khavari and divorced woman would not be sufficient to require international protection, having regard to the applicant’s doctorate degree, and noting her ability to find work in Australia (indicating her resourcefulness).
The delegate noted that the applicant claimed to fear that her husband will seek revenge and he would “not leave a person alone who is not on good terms with him". She was asked to clarify how her husband would harm her and she responded that her ex-spouse wanted to ruin her life and he would be seeking revenge. She was asked why her ex-spouse would seek revenge given that he had initiated their divorce and she responded that he is a very “mysterious and strange person”. The delegate found that any threat from the applicant’s ex-spouse unconvincing, and as she claimed that her ex-spouse initiated the divorce, did not find any compelling reason as to why he would seek to harm the applicant in Iran. The delegate therefore found that for these reasons, the applicant was not a person in respect of whom Australia has protection obligations.
The Tribunal

The applicant provided to the Tribunal an application for review form (stating her name as [Name 1] and citizenship as Iran), and a copy of the delegate’s decision record. She was represented by the same agent at the commencement of the review.
The applicant provided a birth certificate in relation to her son, [Son A] born [date] (her child’s father being [Mr G], who was born in [Afghanistan], and noting they were married on [date] March 2017).
On 10 January 2019 she requested that her son be added to her application, however the Tribunal responded to that request noting that her son was born after the primary decision was made and thus he was not an applicant before the delegate, so not the subject of the delegate’s decision (and in any event if he was to be included in a combined application, he would have to have been recorded on the Application for Review Form, which he was not). It was suggested that she contact the Department concerning her son’s status.
On 1 February 2021 the Tribunal wrote to the applicant noting that her review was to be processed further; the agent responded to advise that he was no longer acting. On 5 February 2021 the applicant’s current migration agent, Ms Anna Ryburn, informed the Tribunal that she was now acting. She stated that she had advised the applicant to approach the Afghan Embassy in Canberra to seek evidence of her nationality. This was the first suggestion that the applicant had nationality other than Iranian.
A number of FOI requests were made to the Department and the Tribunal for files. The Tribunal had scheduled an in person hearing for 26 March 2021, however on 25 March 2021 the applicant sought a postponement and the Tribunal agreed to postpone for 2 months to allow for the receipt of the files from the Department and for gathering further evidence.
In the meantime, the applicant submitted a number of documents to the Tribunal set out in the following paragraphs.
Taskira application form
By way of email dated 5 March 2021, the Tribunal was provided with an application to the Islamic Republic of Afghanistan for a Taskera[3] via the Afghan Embassy of Australia, dated [February] 2021 (with a translation). This application contained the following details:
[3] Spelt a variety of ways including Taskira, Tazkira. According to the current DFAT report (August 2021-January 2022), the taskira is the primary form of identification for Afghan citizens. Taskiras act as the primary document necessary to obtain other forms of identification including passports. They are also required for employment and admission to schools and universities, to obtain approval to run a business, and to buy, rent and sell property.
· The applicant’s name was [Name 2] born [Date 1] in [Suburb 1], Tehran, Iran, her father’s name was [name], grandfather’s name was [name] [this was the first time that these surnames were used].
· Her principal relative was [Mr E] who is described as her paternal [cousin], and whose Taskera was issued [in] September 2013 [this was the first time that [Mr E], her former prospective spouse, was said to be her paternal cousin].
Statutory Declaration changing her claims
By way of email dated 9 March 2021, a statutory declaration of the applicant, dated 8 March 2021, provided a significant change in her claims, which are as follows:
·     The applicant is not an Iranian citizen, she is an Afghan citizen, born in Iran into an Afghan refugee family.
·     The applicant did not put forward to the Department all the information to support a finding that she is of Afghan nationality.
·     When she entered Australia on a prospective partner visa she stated she was an Iranian citizen and that her ethnicity was Khavari.
·     She had not been able to obtain a Taskera because she understood that she had to go to Afghanistan to get one at that time.
·     In the course of the protection visa application the topic of citizenship was not canvassed or discussed in detail.
·     The applicant had not received legal advice regarding changing her position and while she thought about this, she was scared to raise the subject herself from fear for her siblings who remain in Iran with fake Iranian identities.
·     The applicant’s mother and father are both from Daikundi (then Uruzgan). They married young, when the mother was about [age] years old, the father was [a few] years older than the mother. Neither of the applicant’s parents had the opportunity to attend school, they had poor literacy and numeracy skills.
·     They fled Afghanistan in or about 1968 as refugees (prior to the birth of their children).
·     Both parents worked on a [farm] in Iran, but this farm was raided, and they were deported back to Afghanistan, the applicant’s mother estimates this happened around 1972. Their life in Afghanistan was dire. The applicant’s parents returned to Iran and the applicant’s father worked with poultry, and her mother worked as a [occupation] etc. When inspectors visited, the employer hid the applicant’s parents. This employer sorted out some fake Iranian documents for the applicants’ parents to allow them to live their lives, keep working, and avoid deportation. These documents were made prior to the birth of their children.
·     The applicant’s mother was about [age] years old when she gave birth to the applicant’s oldest [sister] (who was born in or about [year] and is about [age] years older than the applicant).
·     On or about 1979 the applicant’s mother left the farm and started working in [a] factory.
·     The applicant’s mother and father relocated to [Suburb 1] and the applicant’s father found farm work in [Suburb 1].
·     The applicant’s older sister [Ms C] was born in [year], and her older brother [was] born in [year].
·     The applicant was born in [year].
·     When the applicant was [age] years old [in about 1991 or 1992], the applicant’s mother “upgraded her Iranian ID successfully by paying an agent”. He had only however succeeded in “creating a non-genuine birth certificate for her”.
·     The applicant’s father was not able to “upgrade” his identification because there were too many questions, so he abandoned the process due to concerns he would be found out during the process”.
·     In [year] the applicant’s younger sister [Ms D] was born. She is [a few] years younger than the applicant, however she now lives in [Country 1] and her birthdate is now recorded as [year].
·     In 1997 the applicant’s father underwent [surgery] and was off work for 3 years, the mother supported the family.
·     Due to the applicant and her siblings holding fake Iranian identities, they were able to enrol in government schooling in [Suburb 1]. The applicant attended [schools] in [Suburb 1], and then finished her high school [in] [year], having moved there to join her father in 2000.
·     The applicant’s father started manufacturing [products], whilst the family was based in Mashad. The mother retired from the factory in [Suburb 1] and she and the other siblings joined her and her [in] 2001.
·     In 2002 Iran upgraded national identity cards in order to weed out fake identities and her mother was not able to obtain a national identity card. From this time on she was not able to pass as an Iranian in Iran so could not even obtain medical care.
·     In September [year], the applicant began studying Bachelor [degree] at [University 1]
·     In 2004 the applicant’s father went to Afghanistan, called her mother and said he was heading to Kabul, they never heard from him again. Her mother tried to obtain an Afghan Temporary Residence Card, however she was refused for being single, and was told the card was for families.
·     In 2007 the applicant commenced Masters [degree] at [University 1].
·     In September 2009 the applicant commenced her [PhD].
·     In November 2014 the applicant married [Mr E], her paternal cousin in a religious nikah ceremony. As he was not Iranian, they were unable to obtain a marriage certificate. They did not use an agent. They decided that she would use her (fake) Iranian documents to lodge prospective ex-partner application, sponsored by [Mr E], as she did not have any Afghan identity documents.
·     The applicant graduated PhD on [date] September 2015.
·     Her mother and sister [Ms D] travelled to [Country 1] 15 days prior to PhD graduation, and sought asylum there. They presented their Afghan identification documents (obtained through Afghan embassy in [Country 1]) to the [Country 1] authorities and have been found by the [Country 1] authorities to be Afghan citizens and they were granted temporary protection visas.
·     The applicant arrived in Australia on [date] January 2016.
·     Her sister [Ms C] married on [date] February 2016 and migrated to [Country 1], thereafter, using her fake Iranian ID as she had no Afghan identification document.
The applicant’s relationship with [Mr E]
·     The applicant’s [sister], and her paternal cousin [Mr E]’s father passed away in 2014 and the applicant and [Mr E] met again at this time in Iran when both were in mourning. His sister asked the applicant to marry him. [Mr E] visited the applicant in Iran whilst waiting for visa on 3 or 4 occasions for a few days at a time; he was frequently travelling for work. Their relationship was fine, although they didn’t spend a lot of time together.
·     Just before coming to Australia, [Mr E] asked the applicant to write to the Australian Embassy and seek an extension to delay arrival, worried about genetic defects of children; the applicant asked for extension, but she was informed that if she did not use the visa she would lose it.
·     [Mr E] was not in Australia when she arrived on [date] January 2016. He had gone to [another country] and did not answer her calls. It became apparent to the applicant that the relationship was not going to eventuate. The applicant had paternal cousins in Perth, but they were overseas attending a family wedding at the time of her arrival in Australia.
·     She sought advice from an agent and was advised that without sponsor she would need to leave Australia unless she got another visa. The thought of leaving Australia on fake documents and with no family, as a divorcee, was frightening. She had never lived or been to Afghanistan and did not have identity documents.
·     In April or May 2016, the applicant and [Mr E] completed a religious divorce without seeing each other.
·     The applicant’s brother is still in Iran and relies on fake identification, she is fearful that any enquiries in Iran could jeopardise her brother.
Current Circumstances
·The applicant met her current husband, [Mr G], when [working]. They are both Hazara Afghans. They married on [date] March 2017. Her husband holds Temporary Protection Visa (Subclass 785), applied for a Subsequent SFE Haven Enterprise Visa which is yet to be processed.
·Their eldest child [Son A] born on [date], holds a bridging E visa, and their second [child], born [date], holds a Subclass 785 visa.
·Neither child has permanent residency in Australia, both are secondary applicants to their father’s application.
Fake Iranian Identity Documents
·The applicant states that she travelled to Australia on her fake Iranian passport: the name on her passport was [Alias 1]. While her fake Iranian passport was a genuine document, it was obtained by relying upon her fake birth certificate and fake national ID card. Her fake Iranian ID card had an expiry of [date] September 2010, but was “current” when entering Australia. Her Bachelor, Masters and PhD are all in her alias name [Alias 1].
Afghan National Identity Document
·   The applicant says that she has obtained legal advice that she should apply for Afghan National Identity card. She has done so, and has used her real family name [rather] than [Alias 1 surname] (which is not her real family name). She is awaiting the issuance of her Afghan National Identity Document.
·   She has submitted her ex-partner’s Afghan National Identity Document in support as he is her paternal cousin ([Mr E]).
·   She does not have her father’s Afghan National Identity Document. Although her mother has obtained an Afghan National Identity Document in recent years, the applicant has not been able to submit this in support due to the patriarchal system in Afghan National Identity Documents.
Citizenship and Ethnicity
·     The applicant says that her citizenship is Afghani and not Iranian, and that her ethnicity is Hazara and not Khavari. She says that Khavari is a term for a subset of Hazara of subsequent generations living in Masshad and other areas of Iran however it is not a recognised ethnicity, rather just a subset of Hazara.
·   She apologises for not giving full disclosure; she was fearful when applying for both applications.
Fear Upon Forcible Return to Afghanistan
·   The applicant fears death or significant harm from Taliban or Daesh if returned to Afghanistan due to her Hazara ethnicity; her Shia Islam religion; her imputed political opinion as a Shia Hazara; as a member of a group of people with an Iranian accent; as a member of a group of people who have lived in Iran; as being part of a group of returned failed asylum-seeker from a western nation; for her imputed political opinion as a returned failed asylum-seeker from a western nation; part of a group of people with foreign connections living in western nations. She also fears that she will be killed or significantly harmed for being a member of a group of women alone in Afghanistan without a male supporter.
·   She fears that if she is removed to Iran, she will be deported to Afghanistan, and the above concerns will apply.
·   She is identifiable as a Hazara woman[4] by her appearance. She speaks Persian with an Iranian accent which identifies her as a Hazara Shia and/or Iranian Shia. She fears being killed, kidnapped for ransom, raped, or otherwise significantly harmed by the Taliban for being a returned asylum seeker from a western country.
[4] Her statement says that she is identifiable as a Hazara man but she has never otherwise claimed to face being imputed to be a man, and the Tribunal considers this to be an error
·   This will apply in Kabul or anywhere in Afghanistan. She will not be protected.
·   She could not take her children with her to such a dangerous place so would have to leave them behind, and both her husband and her children would suffer if she was deported.
By way of email dated 11 March 2021, the applicant provided an untranslated [Country 1] Residency Card issued [January] 2020, in the name of [Ms B] , born [date], expiring [February] 2022. This is apparently the ID card for the applicant’s mother (whom the applicant previously stated was [Ms B]) [the agent said at the end of the hearing that the mother and sister had applied for Afghan national ID cards which they obtained and put to the [Country 1] authorities and they then received a [Country 1] temporary residency card].
Second statutory declaration
A second statutory declaration of the applicant sworn 25 May 2021 was provided to the Tribunal, stated to be “regarding identity and previous visa applications”. It repeats some of the statements made in the first statutory declaration to the Tribunal, and expands on some other matters. It notes that when the applicant was still in Iran hoping to come to Australia to reside with her prospective husband [Mr E], she was unable to obtain genuine Afghan identity documentation and to the best of her knowledge was unable to register her marriage with a foreigner in Iran. After their religious ceremony they considered themselves married and she considered that, in order to obtain a visa to live with her husband, she needed to rely upon her non-genuine Iranian identity. She used this identity the whole time she lived in Iran, including to obtain her education, and she had other documentation in that name. There are many people called “[last name]” living in a rural community outside Mashhad, the man whose name is provided as her father in her documentation, [named person], is a real person (a farmer from that community) but is not her real father.
The reason why her father abandoned his attempt to renew his identity document in 1992 was because he was asked to provide identity documents for parents and siblings to the government office. He thus lived illegally in Iran. She claimed that her mother had not been able to “upgrade” her identity because there was not an official record in the government register; instead her identity was just a piece of paper, not linked to anything, the applicant claims that because Iran is in the process of another upgrade of National Identity Documentation, and the issuance of a new smart card ID, she believes that she will not be able to transition to the new smart card as her identity is non-genuine.
She stated that her initial application for a Taskera in March 2021 was rejected on a technicality regarding the passport photograph dimensions. She expects to be able to obtain an Afghan National Identity document in the very near future; she is planning to travel to the Canberra Embassy and reapply with an expedited process that she hopes to complete in 24 hours.
Her brother is travelling to the old family home in Mashhad to look for old family photographs and other documents that may still be in the house.
With hindsight she believes her first prospective husband [Mr E] was gay and this was why the relationship was not ongoing.
Her brother is married to their second paternal cousin and he remains living in Iran with non-genuine ID. Her sister [Ms C] is [working]. She is married to a [Country 1] citizen of Afghan decent. She lives in [Country 1] and has 2 children. Her sister [Ms D] and mother [Ms B] are also living in [Country 1]; they sought asylum and are living in [another city in Country 1]. Her mother obtained her Afghan national identity card through the Afghan Embassy in [Country 1]. It indicates her family origin as [Daikundi].
Afghan card for [Ms D]
She provided an Afghan card for [Ms D] issued in August 2018, stating she was born in Daikundi in [year] contrary to the applicant’s claims that [Ms D] was born in Iran, and that she was born in [year], her father is [name], and she is single.
Email dated 24 April 2021
By way of email dated 24 April 2021 the applicant advised that a new statutory declaration would be provided including documents that had been located by her brother when he went back to the old family home in Mashhad. It was also stated that an old postcard was located which is being translated to support the applicant’s evidence that [Mr E], in addition to being the applicant’s ex-fiancé is also her paternal cousin. The Applicant’s mother’s alleged non-genuine Iranian [Birth] Certificate for translation. It was also suggested that the issues in the case are: Whether the applicant is Afghan; Whether the applicant is Iranian; and Whether the applicant is a Refugee. The agent sought a further adjournment, however the Tribunal noted in response that as this is a second request for adjournment, and given the late notice of the request to adjourn, and the number of issues to be canvassed in this case, the Tribunal considered it appropriate that the hearing occur as scheduled, noting that it may be that not all issues can be canvassed at the hearing and a further hearing could be held. Further, if the issues can be canvassed at the hearing but they seek further time to produce further submissions and documents, the Tribunal will consider such request.
25 May 2021 additional documents
On 25 May 2021 prior to the commencement of the hearing the applicant provided the following additional documents:
A third statutory declaration dated 25 May 2021 incorporating photos and identification documents from family members including:
·     Photographs of [Mr E] (and his family members) with her family members and in Australia in 2000, a postcard from him in Australia to the applicant’s family in Iran addressing them as his uncle’s family (2002) [the Tribunal notes that Departmental movement records show that he was in Australia as at that date].
·     A copy of the applicant’s mother’s “fake” birth certificate stating that her mother’s name was [Ms B], born in Mashhad [the photo on this appears to be the same person as is in the old photographs but it is difficult to tell]
·     A copy of the applicant’s fathers’ fake Iranian identity for [Name] born in Mashhad [the photo on this appears to be the same person as is in the old photographs]
·     A statement from [Mr H] dated 24 May 2021 which repeats some of the applicant’s first statutory declaration to the Tribunal as to their parents’ history in Iran (deportation of father back to Afghanistan), that they have used fake Iranian documents all of their lives, they found the real [Name] who lived in rural Mashhad, who signed the power of attorney document for the offshore visa application. He attested that [Name 1] is an Afghan citizen without Afghani documents who carries non-genuine Iranian documents. He is afraid to seek the issuance of an Iranian smart identity due to the likelihood of being discovered as a non-genuine Iranian individual.

She provided a letter from the Afghanistan Embassy in Canberra dated 24 May 2021 noting that the applicant [has] applied for an Afghan National Identity card (Tazkirah) and the process is time consuming.
The hearing
The applicant appeared before the Tribunal on 25 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages. The applicant’s agent was present. She did not bring her passport(s) with her as requested (a certified copy was provided after the hearing).
At the hearing, the applicant’s initial evidence caused the Tribunal some confusion, as when it asked her name, she said [Name 1] is her real name that she has used since birth. She had never used another name. It was only when the Tribunal noted that it had seen an application for a Taskera in a different name, namely [name], and it asked her whether she had ever used another name, that she said yes she had used another [name]. She then said that she had never used another name apart from those 2 names, and she said that she has never used a different date of birth.
She said that her ethnicity is an Afghan, Hazara. Her current citizenship is Iranian, she has no other citizenship.
She told the Tribunal that she had obtained a passport from the Iranian Embassy while she was in Australia in about 2016; she had no difficulties in getting the passport, she posted them “a document” and they posted her the passport.
She has applied 3 times for an Afghan Taskera, the first time was in February 2021 when she applied in the name of [name]. She said that her father’s name is [name], he doesn’t really have a family name in Afghanistan. His only identification is his “fake” Iranian birth certificate as [Name]. When asked why then she stated in her application for a Taskera that her father’s name was [name], she said that she used that last name because her uncle’s last name is [name].
She said that her mother’s real name was [name] and she didn’t have a last name but she thinks her mother’s father’s name is [name]. But on her Iranian documents, her mother’s name is [Ms B].
In her second application for Taskera in March 2021 she used the same details except that she did not insert a surname [for] either herself or for her father, whom she just referred to as [name]. She was unaware of the specific reasons why the second application was rejected; she was informed orally that this was because her identity had not been approved by the Afghan authorities.
She applied a third time, providing as supporting evidence the Taskeras of two people who know her. She was orally informed that this application was approved and she has to wait to receive her Taskera; she received a letter from them which stated that her application was being processed (this letter, provided to the Tribunal as referred to above, does not say that her application has been approved).
[Ms C] came to Australia on a [visa] when she was [age] years old. She was a [occupation] who had been working as a [occupation] in Iran for 3-4 years after she graduated. She came with a friend, she stayed in Sydney for about 1 week and spent about 2 weeks in Perth. She returned home because her friend wanted to go back to Iran. Further, as [Ms C] was not a [occupation] at the time, financially it was not easy for her to stay, so she decided to come back to Iran and to study to be a [occupation] and then return to Australia; however, this did not pan out. She married a [Country 1] of Afghan ethnicity in February 2017 and immigrated to [Country 1]. She is there on a spouse visa (she arrived there in about late 2017/early 2018, having got engaged in 2015 and married in 2017).
Her mother and younger sister headed to [Country 1] in August 2015 because the border just opened to refugees. Her mother did not travel with any identification documents; she travelled illegally. The applicant then said her mother did have an ID document, it was a fake Iranian birth certificate, but she had no passport; she paid a smuggler to cross the border.
She said that her father also did not have a passport; he had only ever had a Shenasnemeh.
Her father and mother were not able to “upgrade” their fake Shenasnemeh when they needed to do so; but the children were able to. The Tribunal asked the applicant how the mother’s ID card could not be approved, but her children’s ID card upgrade be approved. The applicant said that the details of parents are not recorded on the ID card. The Tribunal put to her that it would think that, in the system, the parents’ details must be recorded, and it is not correct to say that the parents’ details are not on the ID card, as her father’s details are recorded. The agent acknowledged that this was difficult to understand, offering as a possibility that Iran is a patriarchal system and if the authorities looked for the father’s name when it was time to renew the children’s ID cards, then because the father’s fake name belongs to a real Iranian man, this may have been sufficient for the children’s ID cards to be renewed.
The applicant was asked what documents she used to enrol in school, and she said she used her Shenasnemeh. She enrolled in university in [year] and she used her Shenasnemeh and her ID card (issued 2001, but which had expired in 2010) and nothing else. When she continued other degrees at the university, she doesn’t recall that she had to show her ID again, noting that she was studying at the same university. At university, there were only 2-3 out of maybe 300 students in her course who were Hazara.
Her first job was in a [company] when she was starting her Masters, in about [2007], she worked there for 3 months [however] she became so busy with her Masters that she resigned. She then worked once/ week as a paid consultant [for] 2 years.
She thereafter worked as a [occupation]. She did this for 2-3 years, until she [graduated]. While she was doing her Master’s degree, on about 4 occasions, and once when she was doing her PHD, she [did specified work].
When asked if her PhD was published, she said yes; however, when asked for the title of her publication, she replied that she can’t focus on that right now; she can’t remember. The Tribunal said even approximately, and her response was that it was about [details deleted]. It was published in 3 months before she came here.
[Information deleted]. She agreed with the proposition that she was quite well respected in her field.
The Tribunal asked the applicant which of her documents are fake. The applicant said that if an authority wants to search and find the details of her, her mother’s details are not in any database, and the details for her father are incorrect as they used an Iranian man’s details (with his permission) but if this was examined closely it would be difficult because it would be apparent that her facial appearance is completely different to her Iranian name ([Alias 1 surname], which is an Iranian and not Afghan name). In other words, her facial appearance (Afghanistan, Hazara) does not match her name ([Alias 1 surname], which is Iranian). She said that when she was still in Iran they were not carefully checking, but since then, they are. The Tribunal put to her that in these circumstances, it is difficult to understand how the Iranian authorities would then, in 2016, issue her with a new Iranian passport in Australia, given that her facial features on her photograph do not match her name, and the difficulties with her parents’ documentation. She responded that she was not sure, if she wants to renew it in future, she is not sure if they will check it more deeply. Her mother does not have a legal identity and it will cause suspicion if filling a form or applying for something and if she cannot provide the details of her mother. She thinks that in the passport application they only checked her details, not her father’s. The Tribunal put to her that this was not an explanation, given she said that her name does not match her photograph. In response she said that maybe they did not look too hard, if they wanted to investigate, they could have.
The Tribunal asked whether she had to list her parents’ names in the application form submitted to the Iranian embassy for a new passport. She responded that she doesn’t remember as it was 5 years ago.
The applicant confirmed that her passport and her birth certificate and ID card are fake documents.
Concerning the prospective spouse application, she said that she did tell untruths in this, firstly about her parents’ circumstances, and also not disclosing that her fiancé was her real cousin. She didn’t lie about anything else.
Concerning the interview with the Department on 18 August 2015, she confirmed that she made up that her parents were divorced, that her parents abandoned them, she said that her father did not have 2 wives nor children from a previous relationship, her mother did not get married again, she had not lost contact with her mother, her mother did attend her sister’s funeral. She said that the answers given about her father were actually true concerning the real [name], but not true about her real father. Although she claimed not to be in contact with her aunts and uncles in Mashhad, she told the Tribunal that these were not the people listed in the form, but she was in contact with her real aunts and uncles in Masshad.
She agreed that it was untrue when she said at the interview that they could not marry because she was Iranian [which she now says she is not] and he is Afghan.
Concerning the interview with the Department by telephone on 9 June 2015, she confirmed that she told untruths when she claimed she was Iranian and had (genuine) Iranian identification documents.
The Tribunal put to her its concerns that she has been prepared to tell untruths during the delegate’s interviews for her prospective spouse visa (both by telephone and face to face) and is therefore difficult to know when she is telling the truth. She responded that both these interviews were conducted in Iran and she was worried about the authorities and their control and monitoring. Her family is there, and they lived covertly and were always worried that their real identity would be known and they lived all their life in Iran in such a way so as to not cause any suspicion about them. The government of Iran does not pay attention to the rights of refugees in Iran and as soon as it is noted that one is an Afghan refugee, one’s life turns upside down and one is exposed to all sort of trouble. The Tribunal put to her that she had previously said that she would be identified as an Afghan from her appearance. She said there were people in Mashhad who were from Afghanistan who arrived many years ago, called Khavari. They are a small minority population in Mashhad. In Mashhad, if they were asked about their ethnicity, they would say that they are Khavari; however they would usually keep their distance from others because they did not want too many questions. The Tribunal asked her whether she is saying that it was alright to be Khavari and she said yes. The population in Mashhad recognise Khavari. The Khavari came to Iran 2 or 3 generations earlier. So in Iran when the authorities started to issue national ID cards, the Khavari were all issued an Iranian National ID card.
She said that the only documents she had were those already discussed. She would always tell people that she was a member of Khavari community, rather than saying that she was a Hazara from Afghanistan. However, that when they would go to other parts of Iran, for example when they lived in Tehran, the Iranians notice they are Afghani and they are subject to persecution.
The Tribunal was concerned that she maintained her untruths when she was in Australia. She arrived in Australia and consulted an agent. She said that she found that agent through the agent’s wife who is Iranian; her friend knows the wife. She repeated that she was fearful of the Iranian authorities finding out if she said she was Afghan so she was more concerned about the welfare of her family in Iran. The Tribunal asked her whether anyone else she knew (friends, relatives in Australia, whom she said all claimed asylum) had lied about their heritage, and she said not as far as she knows, she suspects not. The Tribunal asked her, if the truth matters, why didn’t she ask them for guidance, instead of maintaining the lie through both the protection visa application and the protection visa interview. She said because no one likes to disclose about the way they came to Australia and what claim they made, they don’t like to talk about these things. She said that she did ask advice for a case manager at an organisation who encouraged her to tell the truth. But she still did not, because she was scared for her family back in Iran. The Tribunal asked whether she had asked anyone else if she had told the truth she said no. The Tribunal put to her that the obvious person she should have asked would have been her migration agent. She said that he just concentrated on her divorce claims; she said she told him she was Afghan. The Tribunal put to her that her forms state that she is Iranian, not Afghani. She said she was just recording her ID. The Tribunal put to her that it did not accept that she was only recording her ID; it noted that when asked the country of nationality, where she feared harm, she made no mention of fearing a return to her (claimed) genuine country of nationality, Afghanistan; instead, all of her claims are about returning to Iran (to which she claims she is not entitled to return as she is not a genuine citizen).
The Tribunal put to the applicant that it is difficult to accept that she would not have discussed this to her agent, and that people are aware that these applications are confidential and information would not be passed back to the Iranian authorities. In response she said that at that time, the most important thing was her husband had left me and she got divorced; she was aware that her agent “didn’t get” her case or her problem. The Tribunal put to her that she had the opportunity, over 1 year later (at the interview with the delegate), to put forward her case in “the right way”, yet she still didn’t do that. She said that even that time she was still worried about family members who are scattered around the world. She was overwhelmed by fear and by past experience and at the time she didn’t really know anyone to consult to get good information and if she knew at the time nothing would happened to brother and sister she definitely would have said the truth.
At the end of the hearing the applicant was requested to provide a certified copy of her passport by 1 June 2021 and copies of her mother and sisters’ claims made to the [Country 1] authorities and the [Country 1] response/ appeal. The agent raised concerns about translation costs, and said that they had already provided a temporary residence card. The Tribunal considered that given the significant inconsistencies and claim changes, it was important to consider the details of the claims made by her family members, and the response to those claims. It said that it would like those documents to be provided.
Post-hearing
After the hearing the agent uploaded a translation of the temporary residence card in the name of [Ms B] stating that she was born in Afghanistan, as well as a certified copy of the applicant’s Iranian passport issued to her in Iran on [in] 2011.
On 23 February 2022 she uploaded certified copy of the applicant’s Iranian passport issued to her while in Australia [in] 2016, stating her name, her date of birth as [Date 1] on Tehran, that her father’s name is [name].
On 12 August 2022 the Tribunal wrote to the applicant noting that she had not provided the evidence requested from [Country 1]; requesting an update on her application to Afghanistan for evidence of citizenship; and noting that her evidence about her application for an Iranian passport in 2016 was vague, and seeking that she provide further information in this regard.
In response, she provided a statutory declaration sworn 23 August 2022 (the third provided to the Tribunal) and further documents:
·     Concerning the Taskera, she stated that after the Taliban takeover (upon which the Afghanistan NSIA website for identity documents ceased to function) and the shutdowns due to COVID-19 in 2021, it was not possible to obtain her document. She made contact again in January 2022 and they advised her that the electronic system in Afghanistan had ceased working and there was no timeframe.
·     Concerning her 2016 Iranian passport, she said that she made the application in 2016 onshore. She now claimed that there was no form to complete, stating that she sent in her original old passport, original Iranian birth certificate, passport photographs and a money order.
·     Concerning her mother and [Ms D] in [Country 1], it was stated for the first time that they had omitted, during the course of their applications, to mention that they lived or worked in Iran nor did they provide their fake documents to the [Country 1] authorities, for the reason that they did not want to cause harm to family still residing in [Country 1]. It is also stated that her mother did not mention the applicant’s existence in her application form; her mother only claimed to have only one child ([Ms D]). It is stated that the applicant’s sister and mother provided a false address history and false family details to omit their lives in Iran, and to omit the existence of the applicant, [Mr H] and [Ms C]. It was stated however that they were found to be Afghan refugees and were thus provided with temporary residence cards.
The Tribunal was asked by the applicant whether it still sought the actual [Country 1] documents and it confirmed that it did. In September 2022 the applicant provided 2 translated documents from the [Country 1] authorities:
· Notice in Asylum Procedure – [Ms B] (the applicant’s mother ) and [Ms D] ( the applicant’s sister) dated [December] 2016 stating that her mother and sister [Ms D], both claiming to be born in [Afghanistan], claimed to have entered [Country 1] in September 2015 and sought asylum in [Country 1]; their asylum applications were rejected, they were not refugees, nor were they entitled to subsidiary protection, however there was a ban on their deportation from [Country 1].
· A Record of Interview on 2 December 2016 with [Ms B] (Mother)
The applicant acknowledged that the [Country 1] documents do not corroborate her narrative nor her evidence about life in Iran at all.
Those documents showed that the claims made by the mother and sister to the [Country 1] authorities were, for the most part, completely different to the claims of the family’s circumstances as made by the applicant in Australia (to the Department and/or Tribunal). The mother’s claims made in the Record of Interview include the following:
·She is a Hazara who was born in Afghanistan but usually resides in Iran. She was in possession of a passport in Afghanistan which expired when she was in Iran and she threw it away.
·She left Afghanistan about 14 years ago [about 2001]. She had been living in Herat, in the district of Jibrail, in the city section of Tauhidi. She went to Iran and lived with her daughter in a rented apartment in Mashad, where she continued to live until she left Iran for [Country 1] on [date] September 2015.
·She still has an uncle (maternal) in Iran. All other relatives are now dead.
- Her fear of persecution is based on the following circumstances: When I was [age] years old, I had to marry my husband. After my father died, someone took over the guardianship of my family. He supported my family. That is why I had to marry his brother when I was [age]. After I married my husband, I was a slave of this family. I had to work day and night. I had to do everything, not just for my husband but also for the brothers of my husband and their families. The years were like hell for me. I was a small child, and they mistreated and beat me. Even today, you can see scars on my body. The wife of my brother-in-law was ill. Therefore, we moved to the province of Herat. We stayed there for two years. lt was determined that she had become infected with [an illness]. We then travelled to Iran due to the wife's illness. When we were in Iran, the doctors also could not really treat her. So she died from this illness after a while. My brother-in-law returned to Afghanistan after the death of his wife. I remained in Iran with my family. We tried to get a residency permit in Iran. But it didn't work out. Therefore, my husband returned to Afghanistan alone. He wanted to build something up and then bring us back to Afghanistan. That is now 12 years ago. He has not come back so far. I don't know what has happened to him. I don't know if he was killed or died- l don't know. I stayed alone in Iran for 12 years and did not return to Afghanistan. My husband returned to Herat. About one week after his return to Afghanistan, my husband contacted us. But since then, he hasn't contacted me any more. I was afraid of my brother-in-law. I fought for 12 years and paid for the Iife of my daughter and my life on my own.
- When asked whether she was persecuted or threatened in Iran? She said that she was afraid of the Iranian police and that they would deport me. She was also afraid of her brother-in-law. And the son of her brother-in- law gave her warnings: He said that he had witnessed how my daughter moved about in public in Iran. we were moving about too freely, as women. we were a disgrace to the family. Therefore, we would see who the man in the family is. His father would come to Iran in order to marry my daughter with an old man. Recently, my brother-in-law wanted to sell my daughter to an old man in his kinship. My brother-in-!aw had a son in Iran. He told me that his father was planning to sell my daughter to an old man who already had a family. If I had returned to Afghanistan, he would have done that. He also wanted to keep me as his slave.
- Three of my husband's seven brothers mistreated me.
- About five years ago, we received a document from Iran that we had to leave Iran. [Note: The applicant produced a photo of the letter, which apparently states that she would be deported from Iran]. I was afraid day and night that we would be deported to Afghanistan. I was afraid of being deported to Afghanistan, since my brother-in-law would sell my daughter. In his opinion, she was old enough to get married. They lived in hiding for the next 5 years; her daughter did not even attend school.
- When Iran ultimately wanted to deport us to Afghanistan, we decided to leave Iran.
- She couldn’t relocate in Iran as she was illegally present.
- The family of my brother-in-law was very dangerous. They also killed my brother (about 23 years ago) because he always protected me. Note: The applicant produced photos that apparently show her husband, her dead brother and the family of her brother-in-law. She also produced photos of letters from people from her neighbourhood, which apparently prove that she lived alone in Iran for a long time.

The [Country 1] authorities considered that the details provided by applicant’s mother at interview to be stereotypical, superficial and unsubstantiated. The [Country 1] authorities considered that her claim to have been a slave “lacks details and a sufficiently graphic depiction as well as vividness necessary to make the submission appear seamless, coherent and inherently consistent”, and the planned marriage of her daughter is “vague and abstract”. Further the claimed assaults on the mother occurred 12 years ago and there is no indication why this would continue now. They were not found to be refugees nor entitled to subsidiary protection.
A deportation ban was imposed due to the risk of breach of Article 3 of the ECHR on the basis that the applicants appear to be vulnerable women who, without further family ties and support in their country of origin, would with high likelihood be at risk of a subsistence level existence. The traditional social structures in Afghan societies mean that unaccompanied women or women lacking a male guardian face limitations on conducting a normal social life and generally lack the means of survival.
Further hearing not required
The Tribunal considered that a further hearing was not necessary as it was able to make a decision favourable to the applicant. For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issues in this case are described in the second paragraph and relate to the applicant’s nationality, ethnicity, whether she meets the definition of refugee or is entitled to complementary protection, and a provisions of the Migration Act which may indicate that she is prevented from being found to satisfy the relevant criteria.
Credibility
The Tribunal has significant concerns about the applicant’s credibility. While it acknowledges that there may be valid reasons for telling some untruths (for example fear of persecution), it does not accept that this can explain the many untruths in this case.
It is appropriate to set out some background history about Hazaras from Afghanistan and their migration to Iran at this stage, before discussing the applicant’s evidence.

100. The DFAT Report, providing an update on the situation from the time of the withdrawal of the US and other forces in August 2021 until January 2022, states that:
· The Hazara are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian. The majority of Hazara are Shi’a.
· The takeover of Kabul and most of Afghanistan by the predominantly Sunni and Pashtun Taliban in 1996 marked a period of considerable repression and hardship for the Hazara nationwide: the worst single recorded massacre in the country’s recent history took place in Mazar-e-Sharif in August 1998, when the Taliban massacred at least 2,000 Hazara. Many Hazara fled Afghanistan during this period to escape Taliban oppression. The Hazara made significant social, political, and economic gains in Afghanistan after the fall of the Taliban in 2001, albeit from a low base.
101. A 2007 report[5] discusses the history of Afghans in Iran and states that:
In brief, Afghanistan in the nineteenth century underwent three major evol utions that concerned Iran more or less directly: its emergence as a commercial, financial, and eventually political satellite of the British Raj; its gradual unification and its emergence as a monarchic state under the leadership of the Kabul government; the rise of the Sunni Pashtuns to the detriment of other ethno religious groups, and the pauperization of the peasantry. The Hazarajat was particularly affected by these transformations, especially under the reign of Abdur Rahman (1881-1901), who opened the pastures of the Hindu Kush for the Pashtuns. The Three-Year War waged by Abdur Rahman in the Hazarajat provoked the exodus of numerous Shia Hazaras to Iran and the British Raj. This policy of favoritism towards Pashtuns and hostility towards Hazaras was pursued until the 1970s and still continues to sustain the emigration of this population…. the mass settlement of Barbari (called Khavari by Reza Shah people in Khorasan dates back at least to the end of the nineteenth century.
[5] Adelkhah, F., & Olszewska, Z. (2007). The Iranian Afghans. Iranian Studies, 40(2), 137-165.

102. It states that “Iran is, therefore, situating itself in the same kind of schizophrenia as western European societies. Its economy depends on travelers and immigrant labor, whether or not they are legal. But it stigmatizes them while exaggerating their numbers, insofar as it voluntarily implements restrictive legislation dating back to the period between the World Wars and long obsolete, and it discourages immigrants from extending their refugee cards by confiscating them and serving them with repatriation orders”. It states that the presence of Afghans in Iran was becoming increasingly invisible due to repression and as a consequence of repression or integration. Further:
Even among themselves, Afghans do not declare themselves as such and seek rather to blend into Iranian society. This sometimes leads to absurd situations: two Afghan students kept their origin to themselves until one day one guessed her friend's background from her handwriting. Dissimulation or dishonesty has become the rule in many circumstances, even the most intimate. Some do not hesitate to subject themselves to cosmetic surgery of the nose or cheekbones to eliminate the "crime of their features." (emphasis added).

103. A 2013 Human Rights Watch Report[6] refers to Iranian authorities seeing to tighten their control of undocumented Afghans in Iran, and have encouraged Afghan refugees to return to Afghanistan. It was stated that there had been an increase in returns since 2011, which appeared to have been due to economic pressures and the discontinuation of subsidies on basic goods and services by the Iranian government.
In addition to barriers to claiming asylum, Afghan refugees, asylum seekers, and others lawfully present in Iran face severe restrictions on freedom of movement, as well as arbitrary limits on access to education, employment, Iranian citizenship, and marriage rights. All Afghans and other foreign nationals are subject to travel restrictions in many areas of the country, and documented Afghans are restricted to working in specific professions, all of which are menial and many of which are dangerous. Afghan refugees are required to give up their refugee status prior to entering university and are barred from a variety of degree programs. Afghans without legal status face many difficulties in obtaining education for their children, with many children going uneducated or attending underground schools as a result. Finally, both documented and undocumented Afghans experience a range of abuses, and many who are deported also face police abuse, including violence, theft, unreasonable deportation fees, forced labor during detention prior to deportation, and poor conditions in detention facilities. A particular concern is the lack of protection for unaccompanied migrant children in the deportation process.
[6] Human Rights Watch, Unwelcome Guests: Iran's Violation of Afghan Refugee and Migrant Rights , 20 November 2013, ISBN: 978-1-62313-0770, available at: [accessed 29 November 2022]

104. The Tribunal considers that the country information (if indeed the applicant was of Hazara ethnicity from Afghanistan who had been born to Afghan parents living in Iran, and who lived all of her life in Iran) suggests that the difficulties faced by Afghans/ those of Hazara appearance living in Iran could encourage dishonesty in order to survive or thrive, and that this is to a certain extent understandable. As noted above however the Tribunal does not consider that this can explain all of her untruths, and it also notes that not only do her own claims change, but they are also completely inconsistent with the claims made by her (claimed) mother and sister in [Country 1]. In the circumstances, it has been necessary to carefully consider the evidence, and to ascertain whether it supports her core claims.
Adverse credibility concerns
105. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
106. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
107. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
108. Firstly, the Tribunal notes that the applicant did not provide information relating to the claims made to the [Country 1] authorities, and the findings made by the [Country 1] authorities, to the Tribunal after the hearing as requested. Instead, the Tribunal had to remind the applicant after months had passed that it was awaiting these documents. Then, instead of providing the documents, the applicant provided a statutory declaration (stating that the documents would not support her narrative). She finally provided the documents to the Tribunal when again requested. The claims made by the mother and sister are significantly different in many respects to all versions of the claims made by the applicant.
109. The mother’s claims include that she left Afghanistan in about 2001 [not in the 1970’s] after experiencing persecution from her husband (the applicant’s father) and his relatives, which has resulted in visible scars on her body; the reason she left was not to escape persecution but rather because of her husband’s brother’s wife’s illness; she has only one child [Ms D] [thus excluding the applicant and [Mr H] and [Ms C]; she has no relatives except for 1 uncle in Iran [this ignores [Mr H]; in Mashhad they lived in a rented apartment [the applicant claims they owned a [house]; her brother-in-law wanted to sell [Ms D] into marriage with an old man; she claimed to have received a letter saying that they needed to leave Iran (and to have produced to the [Country 1] authorities), and they left Iran in 2016 to avoid being deported; her husband’s family is dangerous and they killed her brother [ all contrary to the applicant’s claims].
110. The Tribunal finds it difficult to accept that the applicant would have been unaware of what her mother and sister had claimed to the [Country 1] authorities, given they are in regular contact, and given her claims before the hearing that her mother and sister had claimed asylum in [Country 1] (and noting that she did, for example, inform the Tribunal that her sister’s birth date was recorded differently). Instead of informing the Tribunal of these significant differences at the hearing (or thereafter, in accordance with the Tribunal’s request at the hearing), the applicant did not disclose this information to the Tribunal either before the hearing or at the hearing, or even after the hearing until she was reminded. The Tribunal considers that this undermines her credibility.
111. The claims made by the applicant’s mother and sister do not support the applicant’s claims in numerous respects, including in relation to family members, and the feared harm if they are returned from [Country 1].
112. The Tribunal also considers that the differences in the claims of the family’s background, between her mother and her sister as made to the [Country 1] authorities, and those made by the applicant, undermines the credibility of the applicant and/or her mother and her sister, or all of them.
113. The Tribunal notes (but is not bound by) the finding of the [Country 1] authorities that the claims made by the mother were not credible.
114. Secondly, the Tribunal had significant concerns about the applicant’s changing identity and changing background and claims that formed part of her protection claims. The applicant was prepared to make an offshore prospective spouse visa application in what she claimed was a fake Iranian identity to come to Australia. During her prospective spouse visa application, she provided a version of events relating to her parents which is substantially different to that provided to the Tribunal currently:
·     In her application forms she claimed that her name was [Name 1] and she has never used any other names [contrary to her current claims that she has a different name]; her Iranian nationality was through descent and she obtained it at birth [contrary to her claim that she was not entitled to Iranian nationality and she only got this because her parents obtained fake Iranian documents before the birth of the children]. She stated that her parents and all her siblings were residing in Iran [contrary to her current claim that her father went to Afghanistan in 2004 and has not been since heard of]. She provided her Iranian identity card, her Iranian birth certificate, her Iranian passport [documents which she now says are not genuine as they are based on false information/documents] and a certificate from the Iranian Police stating that she does not have any convictions.
·     In the interview when she was still in Iran on [date] August 2015, she again claimed that her name was [Name 1] and she has never used any other names. She said that her mother and father had divorced in 2006 [a claim not made in the current proceedings; instead her mother and father were still in a relationship when he went to Afghanistan in 2004], her father had been residing in Mashhad with his first wife, because her mother was his second wife [there was no suggestion by the applicant in the current proceedings that her father had resided with a wife other than her mother]. Her mother and siblings had moved to Mashhad in 2000. She claimed that she had lost contact with her parents 10 years earlier; her father was living with his other wife and children, and her mother abandoned them, saying that they were old enough to look after themselves [this is contrary to her current claims].
·     In a follow-up response to immigration, when asked for their current whereabouts, she said that she presumes they are living in Iran but she does not know their exact address [this is contrary to her current claims]. She said she could not provide a statement from them but could provide one from her brother/sisters.
·     The statements of [Mr H] and [Ms C] dated 22 February 2015 referred to their Iranian birth certificates and Iranian national ID card numbers, and provided copies of their Iranian passports. There was also a power of attorney provided, from “her father” in Iran, [Name] executed 25 April 2006 [after the date (2004) she claims he went to Afghanistan and went missing], giving [Mr H] “custody” of the applicant and her female siblings in all daily and legal matters), as well as a birth certificate for her father [this information about their father is now claimed to be incorrect].
115. The applicant sought to address some of these concerns in her second statutory declaration sworn 25 May 2021 including that she is sorry for telling untruths at the prospective spouse interview about her parents’ whereabouts; her mother did not have genuine Iranian documentation and no Afghan identity documentation at that time, and her father had been lost in Afghanistan. The applicant said she claimed that her parents were divorced as an explanation as to how she was not in contact with them. She said that she had claimed that her father had 2 wives because the real [named person] does have more than 1 wife. She states that the written power of attorney and the birth certificate of her father came from the real [named person], he genuinely provided these documents to assist her. She maintains that he is not her actual father; and that her father remains missing, presumed dead, in Afghanistan. She said she presented genuine information about her relationship with her paternal cousin [Mr E], except that she did not say that he was her paternal cousin. She was fearful of disclosing this in case it triggered enquiries into her Iranian identity, which did not match with his Afghan identity.
116. The Tribunal has some concerns that it was only after she had access, through her agent, to the Departmental files, that the applicant claimed (in her second statutory declaration to the Tribunal) that her father had had a false name and that he used the identity of a real person in Iran; she had not made that claim in her first statutory declaration (which was signed before she had accessed the files). The Tribunal had concerns that the applicant has either been making up explanations as the process goes along, or that she only reveals the truth (if that is what it is) when she believes she has to. This affects her credibility.
117. The Tribunal has considered her explanations for providing false documents and claims. Some of them appear plausible explanations (if, as the applicant claims), her real identity is that she was born into an Afghan refugee family in Iran and being second-generation refugee. If this is the case, the Tribunal understands that she would have faced difficulties if she had sought Afghan identity documents while still residing in Iran, and if she had tried to leave Iran using Afghan identity documents, given that she had resided in Iran as an Iranian and may have drawn adverse attention to herself from the Iranian authorities if she had tried to leave the country as a person with a different name and nationality.
118. However, once she arrived in Australia, she continued to maintain, for a significant period, what she now claims are untruths about her identity and her claims, during her protection visa application.
119. The Tribunal has considered her circumstances at that time. On the one hand, it acknowledges that Departmental movement records show that her intended future husband [Mr E] was not in Australia when she arrived here in January 2016, as was claimed by the applicant, and he did not in fact return to Australia for a significant period of time thereafter. The applicant told the delegate at interview that about 1 week after her arrival, he told her that she had better forget about him and that the marriage was not going ahead. If the Tribunal accepts that she had been abandoned by her intended future husband upon her arrival in this foreign country, then it follows that this must have been a difficult and emotional experience. However, the applicant was not alone in Australia; she has claimed that she stayed with people she knew and she had relatives in Australia, all of whom had made their own claims for asylum. Further, she engaged a migration agent when preparing her protection visa application form and Form 80 (Personal Particulars), in which she made many claims that she now says were false, including:

·     Citizenship in Afghanistan is governed by the Law on Citizenship of the Islamic Emirate of Afghanistan 2000[24]. DFAT has confirmed that this law, passed by the Taliban while in power, remains in place[25].
·     Afghan citizenship is obtained via descent if either the mother or father (or both) are Afghan citizens or upon meeting certain requirements upon application[26].
·     In March 2017, the European University Institute provided the following overview of the acquisition of Afghan citizenship: Afghan citizenship is acquired by descent, birth, naturalisation and on the basis of international treaties. Ius sanguinis has always been the primary ground for granting Afghan citizenship. On the basis of the principle of descent, a child who is born in or outside the territory to a father and mother holding Afghan citizenship automatically acquires Afghan citizenship (Article 9(2)). Article 11 also explains that “a child will be considered a citizen of Afghanistan regardless of whether he or she was born inside or outside the territory of Afghanistan if one of his or her parents is a citizen of Afghanistan and the other is not or his or her citizenship is not established.”… These provisions mean that a child who is born in Afghan territory to Afghan parents or Afghan-foreign parents acquires Afghan citizenship without any further conditions[27]
[23] Afghanistan/Pakistan: CI180911080620300 – Pakistani Citizenship – Afghan Citizenship – Dual citizenship
[24] Sourced from UNHCR Report Law on Citizenship of Islamic Emirate of Afghanistan National Legislative Bodies, UNHCR, 1 June 2000, CIS16734, according to the report
[25] Sourced from ‘AFG 11365 - Afghanistan Citizenship Law’, Australia: Department of Foreign Affairs and Trade (DFAT), 16 March 2011, CX260444 , according to the report
[26] Sourced from the UNHCR according to the report
[27] Sourced from European University Institute, 01 March 2017, p.8, CISEDB50AD4032, and UNHCR according to the report
160. The Tribunal understands that the citizenship requirements have not changed since the Taliban takeover in 2021[28].
[28] This was confirmed by COISS dated 6 December 2022
161. The Tribunal also notes that, from its own research, Taskeras are not currently being issued[29]. This means that the applicant does not, currently, have evidence of her citizenship of Afghanistan. The Tribunal notes that in international law, nationality has been described, in general terms, as:
… a specific relationship between individual and State conferring mutual rights and duties as distinct from the relationship of the alien to the State of sojourn.[30]
[29] The Tribunal searched the Afghanistan Embassy website in Australia and located a reference in the Oslo Afghanistan Embassy website that it is not possible to apply for a Taskira at the moment – refer to results on document in Tribunal file entitled: How to obtain a Taskira - accessed 5.12.2022
[30] P Weis, Nationality and Statelessness in International Law (Hyperion Press, 2^nd edition, 1979), at 31.
162. Nationality is not identical to citizenship, although there is some overlap between the terms.[31] It is not necessary to formally hold citizenship to be a national. As noted above, the applicant has submitted an application for a Taskera which is pending, but which is not being processed due to the circumstances in the country. This does not mean that the applicant is not a national of Afghanistan. The Tribunal accepts that, according to the citizenship law, she is automatically a citizen of Afghanistan. The Tribunal accepts that the applicant is a national of Afghanistan.
[31] See VSAB v MIMIA [2006] FCA 239 at [50]–[53].
Circumstances in Afghanistan if the applicant was to return
Country information
163. The DFAT Report, providing an update on the situation from the time of the withdrawal of the US and other forces in August 2021 until January 2022, states that:
·     The return of the Taliban in 2021 was met with great fear by the Hazara community.
·     The Taliban set up an ‘interim government’ in September and October 2021, with the announcement of some 88 appointments across 30 ministries. The occupants of these positions are mostly Pashtun and chiefly long-serving Taliban commanders with little relevant government experience. There are no women among them and few representatives of ethnic minorities.
·     After the 15 August takeover, violence generally decreased across the country, although specific groups continue to be targeted by the Taliban and others, and there have been waves of killings of journalists, human rights activists, judicial workers, doctors and clerics.
·     Islamic State in Khorasan Province (ISKP) is the Afghanistan offshoot of Daesh (also known as Islamic State or IS). It is strongly opposed to Shi’a Muslims and the West. Sources report that ISKP grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons.
·     As of late 2021, the Taliban’s control over Afghanistan is essentially complete, with the exception of its inability to prevent terrorism by ISKP and others.
·     DFAT assesses that the security situation in Afghanistan remains dangerous. DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP. DFAT assesses that women in Afghanistan, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination. DFAT assesses that Afghan women continue to face a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage. DFAT further assesses that women face a high risk of harassment and violence from the Taliban if they depart from traditional female roles. While the Taliban has been relatively restrained as of late 2021—for example permitting women to protest in the street on some occasions (while resorting to violence on other occasions)—there is a risk such comparative restraint could end at any time. DFAT assesses that the situation of women in Afghanistan, with regards to access to employment, education and healthcare services, is precarious; such access that exists may be altered or withdrawn by the Taliban with little warning or reason given.
164. Subsequent to the issue of this report in January 2022, the Taliban have violated their promise that equal rights would be extended to women following their takeover of Afghanistan in August 2021, they have instead explicitly sought to control women’s freedoms[32], including introducing restrictions on women’s dress and their freedom of movement. On 7 May 2022, the Ministry for the Propagation of Virtue and the Prevention of Vice announced a decree ordering that all women were required to cover their faces and only show their eyes, with it being recommended that they wear the burqa to cover themselves from head to toe. The Ministry also announced that women who appeared in public in violation of the new guidelines on dress would first be issued warnings, and that those continuing to disregard the decree would have their homes identified and their male relatives summoned for punishment that could include a reprimand, imprisonment or dismissal from government employment[33].
[32] Freedom House, 24 February 2022,
[33] The Taliban ended the limited formal protections against domestic violence offered by the previous regime. They also closed shelters for survivors of gender-based violence, with some residents reportedly transferred to prisons. Individuals convicted of gender-based violence were among those released by the Taliban during their takeover. The ending of institutional and legal support for women by the Taliban has reportedly escalated the risk of violence for women in Afghanistan[34].
[34] An article in Forbes[35] dated 1 October 2022 entitled: Yet another attack on the hazara in Afghanistan notes that the Hazara community has encountered decades of persecution in Afghanistan. Since the Taliban takeover, the targeting of the Hazara is said to have increased and the attacks enjoy impunity. In September 2022, the Hazara Inquiry, an inquiry into the situation of the Hazara in Afghanistan and Pakistan, run by British Parliamentarians and experts, published its reports on the dire situation of the Hazara in Afghanistan. The report revealed that, as a religious and ethnic minority, the Hazara are at serious risk of genocide at the hands of IS-K and the Taliban, and states that this finding engages the responsibility of all states to protect the Hazara and prevent a possible genocide, under the UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) and customary international law.
[35] On September 6, 2022, U.N. Special Rapporteur on the situation of human rights in Afghanistan Richard Bennett raised the dire situation of the Hazara stating that the community have been subjected to multiple forms of discrimination, negatively affecting their economic, social, cultural and human rights. As he emphasized, “There are reports ofarbitrary arrests, torture and other ill-treatment, summary executions and enforced disappearances. In addition, an increase in inflammatory speech is being reported, both online and in some mosques during Friday prayers, including calling for Hazaras to be killed.”
168. As the report states, “When the Taliban took control of Afghanistan in 2021, it significantly affected the situation faced by the Hazara and reversed the 20-year progress made in addressing the marginalization and discrimination experienced by this minority group. The return to power of the Taliban has included brutal acts of violence against the Hazara throughout Afghanistan and a return of terror. The first half of 2022 has seen hundreds of members of the Hazara community killed and many more injured as a result of the targeted attacks, including bombings of Hazara schools, places of worship and other centers. This trend is likely to continue. There is a pressing need to provide the community with protection, in line with international obligations under the Genocide Convention.”
169. The attack on Kaaj Educational Center was predictable and could have been prevented. However, the Taliban, the de facto authority responsible for safety and security in the country, has been failing the community. Despite the increase in attacks against the community, as seen in April and May 2022, the Taliban did not introduce any special measures to protect the community.
170. UNHCR has highlighted the widespread human rights violations in Afghanistan, giving rise to an increase in the need for international protection for people fleeing Afghanistan, including, inter alia, women and girls as well as ethnic and religious minorities[36]
The applicant
[36] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection
171. The Tribunal accepts that the applicant is a female national of Afghanistan, of Hazara ethnicity. Given her ethnicity and the country information above, it accepts that she is a Shia Muslim. The DFAT report states that ethnic, religious, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. Ethnic kinship is central to identity and acceptance in the community, and plays a crucial role in enabling Afghans to obtain shelter, employment and security. Afghans therefore tend to live in areas where their ethnic group constitutes the local majority.
172. While the Tribunal accepts that she will have some connections in Afghanistan, she will have to locate these. The Tribunal accepts that the applicant is married to an Afghan national who has been granted protection by the Australian authorities, and that he would not return with her; it also accepts that she would not take her children due to the uncertain and dangerous situation in Afghanistan. It considers that if she returned to Afghanistan, this would be her first time travelling to Afghanistan, and she would be alone.
173. On the basis of her characteristics and the country information, the Tribunal is satisfied that the applicant faces a real chance of serious harm if she returns to Afghanistan from the Taliban who have taken over the country. This harm would be for reasons of her membership of particular social groups including women, her ethnicity as a Hazara and her religion as a Shia Muslim. These reasons would be the essential and significant reasons for the harm from the Taliban government. The type of harm would include severe discrimination, assault and possible death, which constitutes serious harm. This harm would be systematic and discriminatory conduct because it would be non-random and targeted at the applicant for one or more of these reasons.
174. The Tribunal accepts that the applicant cannot alter her behaviour to obscure these characteristics, noting that her gender and ethnicity are immutable. Effective state protection cannot be accessed by the applicant as she fears harm from the Taliban who control effectively almost all of Afghanistan. The Tribunal accepts that she cannot relocate within Afghanistan for the same reason (and noting the difficulties in relocating because she has never previously lived in the country).
175. Having regard to all of the available information, the Tribunal is satisfied that the applicant has a well-founded fear of persecution by the Taliban for reasons of her ethnicity, religion and membership of the above particular social group if she returns to Afghanistan now or in the reasonably foreseeable future.
Conclusion
176. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
decision
177. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christine Cody
Member

annexure a - Criteria for a protection visa

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Annexure B

Islamic Republic of Iran, Ministry of Foreign Affairs, accessed 9.12.2022 - Passport Renewal

Passports can be renewed exclusively in the following cases:
It is worth noting as of June 21, 2008, older passports can no longer be extended, and holders of these will need to collect the following documents to get a new passport issued:
Required documents

Expiry of the 5 or 10 year validity of the previous passport.

There are no longer any blank pages left in the passport

Individual has evidence of being registered under a new Name, Surname, or Date of Birth; in which case it is required provide that evidence namely their Iranian Birth Certificate, or "Shenasname"

A copy application form [ 101 ] for passport renewal

The Original and a photocopy of their old passport (this should include the first 6 pages for 5-year-long-valid passports, and the first 11 pages for the older passports )

The original Birth Certificate (Shenasname), as well as a photocopy of all the pages. (Birth certificate of individuals above 15 years of age must contain an ID photo)

The Original copy as well as a photocopy of the individuals residence permit card.
A filled out copy of form [ 103 ], for changing place of residence, and issuance of multiple exiting permit.

Original and photocopy of the Certificate of Completion of Military Service or Exemption from Service, or filling out Formno.104 for granting permission to exit once a year (for those required to do Military service and those born after 1338 (1959) who have not yet done their service and are not in possession of any Exemptions and have left the country before 29 of Esfand 1382 (19March 2004) and for a stay of 2 years abroad. )

Three 3x4cm passport photos taken within the past six month, (Including a full face, front view, open eyes, a plain white background & without a hat, glasses or neck scarves). According to the regulations of the IRI, women applicants should be wearing head scarves. [Note: Applicant should also remember to include their personal details on the backside of the passport photos.]

Original of Birth certificate (Shenasname), along with photocopies of all the pages of the document and 2 ID photos of the spouse and/or children of applicant (only in the case the applicant has their details inscribed in his passport in advance.

Filled-out application form [ 111 ], for the company of the spouse and children of applicant.

This application form must be filled out by the husband, and for having the company of his wife or via the father for having the accompanying his children in his passport or that of the mother of the children and undersigned.

Original copy of birth certificate of the individuals accompanying the traveler and the photocopy of all the pages of the certificate.

Two 3x4cm passport photos taken within the past six month, (Including a full face, front view, open eyes, a plain white background & without a hat, glasses or neck scarves). According to the regulations of the IRI, women applicants should be wearing head scarves. [Note: Applicant should also remember to include their personal details on the backside of the passport photos.]

A photocopy of the residence permits card

Identity Cards
Information on these National Identity Cards and their validity is provided in a report published in January 2021 by Landinfo[37], the Norwegian COI unit. The electronic National Identity Cards were first issued in 2011 as part of a pilot project and have been issued more widely since 2012; the expiry date, which is seven years after the card’s issuance, is provided on these cards. These cards must be renewed after seven years. The report also provides information about the older version but does not refer specifically to an expiry date on these cards, although there is information that Iranian government representatives told Landinfo that in 2015 the old cards had been extended by decree, and information from 2017 from the Norwegian Embassy in Tehran stating that ‘people who did not exchange the card before the set deadline, would probably get an extended deadline’.
[37] 'Iran: Passports, ID and civil status documents', Landinfo, 05 January 2021, 20210128115803
Further information on the electronic National Identity Cards was provided in a January 2015 research response by the Immigration and Refugee Board of Canada[38]. This research response also provided the following information about the old version of the National ID Cards, which indicated that people were ‘not required to replace their national ID cards with a smart card’ and that the ‘vast majority’ of people in Iran continued to use the old version of the National ID Cards. The Iranian government had announced on 31 December 2013 that all old National ID Cards would be automatically renewed until 2015 due to a lack of funds to pay for the new program:
[38] 'IRN104592.E - Iran: The National Identity Card, including requirements and procedures to obtain the card within the country as well as from abroad; whether the card has replaced the shenasnameh; whether fraudulent cards exist (2012-September 2013)', Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 01 September 2013, CIS27381 (see Section 5 ‘Replacing the National Identity Card with the National Smart Cards’)
In February 2014, the head of the NOCR reportedly said that people are not required to replace their national ID cards with a smart card, but that in cases in which 15 year olds apply for their first national ID card, as well as in cases in which a national ID card is replaced or amended, smart cards will be issued (Iran 10 Feb. 2014). The Executive Director of IHRDC said that while individuals are "technically" supposed to replace their national ID card with a smart card before they expire, the NOCR is currently focused on replacing expired national ID cards with smart cards and issuing new smart cards to people who have never had national ID cards (approximately 600,000 people) (IHRDC 12 Jan. 2015). The same source noted that the old national ID cards are no longer being issued, but that the NOCR is waiting for additional funding to implement the Smart Card project (ibid.). According to the MECS consultant, the Iranian government is replacing the national ID card (Karte Melli) with the Smart Card, but the "vast majority" of people in Iran continue to use the national ID card (MECS 12 Jan. 2015).
In correspondence with the Research Directorate, a professor of political science at York University, who specializes in Iran, said that the Iranian government announced that expired national ID cards are still acceptable, because the government has not been able "to replace them all" (Professor 5 Jan. 2015). The MECS consultant noted that on 31 December 2013 the President of the NOCR announced that all national ID cards would be valid until 2015 and that the "automatic renewal [of the old national ID cards] was initiated because of a lack of funds to pay for the new programme" (MECS 12 Jan. 2015).
However, without providing details, the Executive Director of IHRDC said that Iranians with expired national ID cards might face "some administrative obstacles" (IHRDC 12 Jan. 2015).

Needs of People Fleeing Afghanistan, February 2022:

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Citations

1714169 (Refugee) [2022] AATA 5117

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2022] AATA 5117

14 December 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Remedies

Statutory Construction