1801329 (Refugee)

The applicant, an Afghan national of Hazara ethnicity and Shia religion, sought protection in Australia. He claimed to be at risk of serious harm if returned to Afghanistan due to his ethnicity, religion, status as a returnee from a western country, and alleged past targeting by the Taliban. The dispute concerned whether these claims established a well-founded fear of persecution for a Convention reason, thereby engaging Australia's protection obligations. The matter was before the Tribunal.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group. Specifically, it needed to assess if there was a real chance the applicant would suffer serious harm amounting to persecution in Afghanistan due to his Shia Muslim faith and Hazara ethnicity, and whether the Afghan state could provide effective protection against such harm. The Tribunal also considered whether the applicant could reasonably relocate within Afghanistan to avoid such a risk.

The Tribunal accepted the applicant's claims of being an observant Shia Muslim and of Hazara ethnicity. While expressing reservations about the applicant's account of being targeted by the Taliban, the Tribunal found that there was a real chance the applicant would face serious harm amounting to persecution due to his religion and ethnicity. This conclusion was based on country information indicating a significant increase in sectarian violence against Shia Muslims, particularly by groups like the Islamic State in Khorasan Province (ISKP), and the vulnerability of Shia Hazaras to such attacks. The Tribunal found that the Afghan government lacked the capacity to provide effective protection to its citizens against these non-state actors, and that relocation within Afghanistan was not a viable option due to the pervasive nature of the threat and the risks associated with travel. Consequently, the Tribunal was satisfied that the applicant had a well-founded fear of persecution for reasons of religion.

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