1716870 (Refugee)

The applicant, an Afghan national of Hazara ethnicity and Shia religion, sought a protection visa. The dispute concerned whether the applicant had a well-founded fear of persecution in Afghanistan, necessitating Australia's protection obligations. The matter was heard by Alison Murphy, a member of the Tribunal.

The court was required to determine if the applicant had a well-founded fear of persecution for reasons of his ethnicity, religion, and imputed political opinion. Specifically, the court had to assess whether there was a real chance of persecution for these reasons across all areas of Afghanistan and whether the Afghan state could provide effective protection.

The Tribunal considered extensive country information regarding the volatile security situation in Afghanistan, including the historical and ongoing persecution of Hazara Shias by groups such as the Taliban and Islamic State. It was noted that while ethnicity and religion are often intertwined, sectarian violence against Shia Muslims, including Hazaras, had significantly increased in Kabul during 2016 and 2017. The Tribunal found that the applicant's personal experiences, combined with the documented pattern of sectarian attacks, established a well-founded fear of persecution for the combined reasons of his Hazara ethnicity, Shia religion, and political opinion. Furthermore, the Tribunal concluded that the Afghan state lacked the capacity to provide effective protection to the applicant, even in Kabul, and that no area of Afghanistan could be considered free from the real chance of persecution.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion under s.36(2)(a) of the Migration Act 1958, meaning Australia had protection obligations towards him.