1802143 (Refugee) - [2024] AATA 2834

1802143 (Refugee) [2024] AATA 2834 (25 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Farid Popal
CASE NUMBER:  1802143
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Simone Burford
DATE:25 June 2024
PLACE OF DECISION:  Perth
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 25 June 2024 at 1:09pm

CATCHWORDS
REFUGEE – protection visa – Afghanistan – irregular maritime arrival – imputed political opinion – worker for foreign NGO, son of government worker and returned failed asylum seeker – father killed, applicant shot, beaten and tortured, and brothers kidnapped – fear of harm from Taliban – adverse information – travel history not declared, including detention, temporary asylum and applications for and refusals of permanent asylum – inconsistent dates, claims and evidence – advice from people smuggler and agent – significant incorrect information conceded – authenticity of supporting documentation – mental health – work for NGO worker, father’s work and brothers’ disappearance plausible – cumulative aspects of profile – country information – worsening human rights situation – real chance of serious harm – wife and children living in another country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3), 45AA, 65, 91R(1), 438(1)
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIBP v SZMTA [2019] HCA 3
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZTYV v MIBP [2018] FCA 1076
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 Home Affairs to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant claims to be an ethnic Pashtun of Sunni religion, born in [Location], [District], Paktia Province, Afghanistan. He is [Age]-years-old.
The applicant arrived in Australia as an Irregular Maritime Arrival (IMA) [in] July 2012.
Protection claims
Protection visa application
The applicant applied for a protection visa on 18 February 2013. The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant’s claims for protection in his application and when interviewed by the Department on 9 January 2014 were summarised in the delegate’s decision as follows:
·The applicant claims to fear returning to Afghanistan because he fears harm, including arrest, detention, physical assault and death at the hands of the Taliban because he has worked as a driver for an [NGO, Full name, including Country 1] and for being the son of [an occupation] who was recently targeted and assassinated by the Taliban.
·The applicant claims that the Taliban had targeted him due to his imputed political opinion, i.e. supporting the Afghan Government and International Forces (ISAF).
·The applicant’s initial claims centre on the death of his father, who was allegedly killed [in] January 2011 and the applicant’s own alleged kidnapping by the Taliban [in] March 2011.
·The applicant claimed he left Afghanistan [in] April 2011 where he travelled to Pakistan briefly before travelling to Australia.
The delegate’s decision notes that following the interview, an initial assessment was made recommending the applicant was a person in respect of whom Australia has protection obligations under the Convention. However, adverse information regarding the applicant’s claimed migration history became available to the Department (detailed below) following the assessment in the process of conducting identity checks. The applicant was invited to comment on the discrepancies in September 2017. As part of his response the applicant corrected his claims as follows:
·In relation to threats the family received threat letters from the Taliban due to his father’s work for the [Employer 1]: This occurred in September or October 2007 and not after 2008 as initially claimed.
·His father was killed [in] December 2007 and not [January 2011] as initially claimed.
·The applicant was attacked and kidnapped by the Taliban in early January 2008 and not [March] 2011 as he initially claimed.
The applicant’s migration history and adverse information
The delegate’s decision details that as part of an assessment of the applicant’s claimed identity in 2014, the
applicant’s fingerprints returned a match in the Five Country Conference (FCC) check for [Country 2]. The FCC Match Report recorded the applicant’s name as an alias for an Afghan national whose name was [Alternative spelling of applicant’s name]

([DOB]). The information indicated that the applicant was known to be in [Country 2] between [August] 2008 and [July] 2010, and that he claimed asylum in [Country 2] and was refused. He was removed to [Country 3] [in] July 2010. The delegate noted that the information obtained as part of the FCC check is not consistent with the applicant’s claimed travel history.
The delegate noted the applicant had never claimed to have travelled to [Country 2] or [Country 3], nor that he sought asylum in these countries. As noted above, the applicant was invited to comment on the adverse information and to provide further information regarding this travel history, including documentary evidence of his residence and status in [Country 2] and [Country 3] and information as to how and when he returned to Afghanistan from Europe.
The applicant responded through his registered migration agent on 12 December 2017 as follows:
·The applicant provided an amended statement of claims amending the timeline of events, including the applicant’s departure from Afghanistan, consistent with his travel to Europe.
·The applicant has clarified that he left Afghanistan at the end of January 2008 and not 2011 as previously claimed.
·He travelled through [Countries 4-6] to get to [Country 3]. From [Country 3] he travelled to [Country 2] through [Country 7].
·In [Country 6], he was arrested by the police and detained for seven days. The [Country 6] government took his details and fingerprints, then released him. He travelled to [Country 3] after staying [Country 6] for approximately one month.
·In [Country 3], the applicant was arrested and held in immigration detention. The [Country 3] authorities advised him that his fingerprints appeared in the [Country 6] database, meaning that he risked being returned to [Country 6] to process his asylum claim.
·After being released from detention, the applicant lodged an asylum claim in [Country 3] with the assistance of a lawyer.
·A people smuggler advised the applicant that fingerprint checks in [Country 2] may not reveal the history of where his fingerprints were taken. The applicant decided to travel to [Country 2].
·On the way, he was arrested in [Country 7] and kept for 12 hours before being released.
·In [Country 2], the applicant was taken to a detention centre. His asylum application was refused because the authorities discovered he had his fingerprints taken in [Country 3].
·His protection claims were not assessed and he was deported from [Country 2] back to [Country 3].
·After being held in detention for four to five months in [Country 3], the [Country 3] government released the applicant into the community, and he was advised he had temporary protection.
·This did not allow the applicant to sponsor his wife. He decided to leave [Country 3] for Pakistan [in] December 2010 where his wife and children joined him.
·He stayed in [Pakistan] for three months before leaving for Australia. He left Pakistan [in] March 2011 travelling through [Countries 8 and 9] and then to Australia.
·On 19 December 2017, the applicant’s representative provided a copy of the applicant’s [Country 3] travel document (Titre De Voyage valid until 3 November 2015), including an English translation 3 November 2015.
·The applicant’s representative provided a copy of a Pakistani visa valid until 15 May 2011.
The delegate found the documents were consistent with the applicant’s claimed identity but that the applicant had provided significantly inconsistent information to the Department regarding the details of his travel history, including when he left Afghanistan.
The delegate accepted there was no evidence to suggest that the applicant has a right of residence in any country other than Afghanistan, including [Country 3] or Pakistan.
Evidence submitted to the Department
In addition to the information mentioned above, the applicant submitted the following documents to the Department in support of his application:
·Statutory declarations for the applicant dated 14 February 2013 and 12 December 2017 and corrected version of the February 2014 declaration dated 12 December 2017;
·[Employer 1] ID card for [Mr A], the applicant’s father;
·[NGO 2, Country 10] Staff ID Card in the name of [Alternative spelling of applicant’s given name plus father’s name], born [Year] (issued 2006- Expiry 2007);
·Translated copy of Aghanistan Driver’s licence in the name of [the applicant] issued Kabul, [September] 2010 and valid to [September] 2014;
·Taskera with 2 translations for [the applicant] (son of [Mr A]), [Location], Paktia issued in 2013 or [July] 2008 (differing translations);
·UNHCR refugee certificate issued for [the applicant, spelling 2] [in] January 2012 in [Country 9];
·Translated newspaper article ‘A driver of [NGO Acronym misspelled] Organisation has been kidnapped’.
Delegate’s decision
The delegate refused the application on 19 January 2018.
Noting the false account the applicant had given of his travel history, the delegate found the applicant was not a credible witness and had deliberately misled the Department with regards to his claimed history. Given his lack of credibility and country information regarding the prevalence of document fraud in Afghanistan, the delegate did not accept the documentary evidence the applicant offered to support the claim of his father’s involvement with the [Employer 1] and the applicant’s work for [NGO]. The delegate did not accept he left Afghanistan for the reasons claimed, including due to his father's alleged association with the [Employer 1] or that he had any association with the international community or that he was targeted by the Taliban for these reasons.
The delegate did accept:
·He is a Pashtun and Sunni Muslim from Paktia province, Afghanistan;
·The applicant would be returning to Afghanistan as a failed asylum seeker.
However, the delegate was not satisfied that the applicant has a well-founded fear of persecution or that there is a real chance of persecution if he were to return to Afghanistan now or in the reasonably foreseeable future on any basis.
The delegate found the applicant did not have any profile that would lead him to be targeted in insurgent activities and that there was only a remote chance of him being harmed in criminal, insurgent, or generalised violence in his province or on the roads. In any event, the delegate found such risks were risks facing the population of the country generally and are not faced by the applicant personally.
Review application
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 29 January 2018. He provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 12 October 2023 and 10 November 2023. The hearings were conducted with assistance of an interpreter in the English and Pashto (Afghanistan) languages. The applicant was represented in relation to the review at the time of decision by Mr Popal. At the hearings Mr Robert Lindsay, of Counsel, appeared with Mr Popal for the applicant.
During the course of the application for review the applicant has submitted a number of medical reports relating to mental health issues for which the applicant had been diagnosed and/or treated in Australia. These issues are considered further below.
He also submitted country information and the following documents relevant to his claims for protection:
·Written submissions from the previous representative dated 23 March 2023;
·Written submissions from the current representative dated 6 October 2023;
·Written submissions dated 27 November 2023;
·Written submission and statutory declaration from the applicant’s representative dated 29 November 2023 including letter sent to [NGO] on 15 November 2023 seeking confirmation of the applicant’s employment;
·Written submissions dated 8 February 2024 regarding return to Pakistan;
·Document and translation – letter from the ‘Local Council of [Village]’ regarding the kidnap of the applicant’s brothers on 19 August 2020;
·Newspaper article (excerpt) and translation – ‘A driver of [NGO acronym misspelled] institution has been kidnapped’ (undated);
·Statutory declaration from the applicant dated 6 October 2023;
·Statutory declaration from the applicant dated 9 November 2023;
·Copy and translation of an Afghan Taskera for [Mr A] (the applicant’s father) issued 2010;
·Email from [Ms B], former [NGO] relief worker dated 9 November 2023;
·Statutory Declaration from [Ms B] dated 28 November 2023, including a copy of [Ms B]’s Afghan National Identity Card (electronic); letter from [NGO] dated 11 November 2011 and working certificate dated 17 December 2009 confirming [Ms B] was employed by from 5 June 2002 to 10 November 2009; Letter of cessation of employment for [Ms B] from [NGO] dated 10 October 2009, Staff payment record for [Ms B]; letter from [Organisation] dated 23 October 2014 confirming [Ms B] worked with the organisation from 11 November 2009 until 30 July 2011 in Paktia; ‘Change of status form’ for [Organisation ] for [Ms B] indicating a hire date of 24 May 2012.
The Tribunal notes that some of this material was in the form of post hearing submissions the provision of which was discussed at the November 2023 hearing.
Section 438(1)(b) Certificate
On 27 September 2023 the Tribunal wrote to the applicant to inform him of the existence of a certificate on the file of issued by the Department of Home Affairs dated 30 January 2018 regarding disclosure of certain information under section 438 of the Migration Act 1958. A copy of the certificate was provided to the applicant (with minor redactions).
The s 438 certificate stated that disclosure of the information contained in the identified folios in the Department file would be contrary to the public interest because the Department considered that the matter contained in the document of information should not be disclosed to the applicant or the applicant’s representative because if contains sensitive documents or information given to the Department in confidence by a third party.
The applicant was invited to make submissions with respect to the validity of the s. 438 certificate and whether the Tribunal should exercise its discretion to release the information in the event the Tribunal determines the certificate is valid.
The applicant responded to that invitation with written submissions provided on 11 October 2023. Those submissions contended:
·the notification by certification is defective in that s 438(1)(b) does not stand on its own and must be read with s 438(1)(a). The notification does not certify the supplied document or information received in confidence by the Department is such as to merit non-disclosure under s 438(1) as being “contrary to the public interest”;
·if accepted the notification is defective then the notification should be set aside and have no effect for it is an unauthorised referral by the Department and s 438 does not apply;
·consistent with the majority view in Minister for Immigration and Border Protection v SZMTA & Anor 2019 HCA 3 (SZMTA) if the notification is held to be valid, and the Tribunal, having regard to the nature of the document or information and the advice supplied by the Department, may under s 438(3)(a) for the purpose of exercising its powers, have regard to any matter of relevance contained in the document or information. However, if it does so determine then procedural fairness requires the Tribunal under s 438(3)(b) to inform the Applicant in such way as to enable him to respond to the information or document. This is where the Tribunal affirmatively exercises its powers. If this occurs, then s 440 sets out procedures for limiting publication to whom the information may be disclosed;
·even if an order of limitation is made under s 440 the Tribunal, in giving its reasons under s 430 would be required to refer to any reliance placed upon the information or document in reaching its decision.
The Tribunal considered these submissions and discussed them with Counsel at the first hearing. As indicated at the hearing the Tribunal did not accept that s 438(1)(a) and (1)(b) were conjunctive in the manner contended. No authority for the proposition was offered by the representative.
As indicated at the hearing, the Tribunal was satisfied the s 438 certificate was validly issued as the material covered had the necessary quality of confidentiality having been provided to the Department by an external source or third party with the expectation that the material would be treated as confidential and wouldn’t be disclosed, and that the information not be public or common knowledge.[1]
[1] See SZTYV v MIBP [2018] FCA 1076 at [42].
Also as discussed with the applicant at the hearing, the Tribunal considered the material covered by the certificate was largely historical and was covered by other material which had been covered in the invitation to comment on adverse information issued by the Department to the applicant prior to the delegate’s decision being made. That material related to investigations regarding the applicant’s claimed identity and his migration movements in Europe. The applicant had commented in detail on that information with the assistance of his then representative and the information would be discussed during the Tribunal hearings. Having regard to the advice contained in the certificate and the circumstances of the case, the Tribunal did not consider it would appropriate to release the information. However, to the extent it was relevant information contained in the documents covered by the certificate was discussed with the applicant at the hearings.
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 Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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.
ANALYSIS, REASONS AND FINDINGS
The issue in the review is whether the applicant has a well-founded fear of persecution in Afghanistan, or whether complementary protection provisions otherwise apply.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Applicant’s identity and country of reference
The applicant claims to be a citizen of Afghanistan. He provided an Afghan Taskera in support of his claimed identity.
As noted above, the delegate had significant concerns with the applicant’s claimed migration history. These concerns were acknowledged by the applicant who accepted he had provided false information about his migration history and had claimed asylum in [Country 3] and [Country 2]. He was granted temporary asylum in [Country 3] in November 2010. The applicant’s family are in Pakistan. He contends they are refugees and do not have third country protection in Pakistan. For reasons discussed further below, the Tribunal finds that the applicant does not have a right to enter and reside in a third country for the purposes of

s 36(3).
Notwithstanding concerns regarding the applicant’s claimed nationality, the delegate accepted he was an Afghan citizen. There was no information before the Tribunal to challenge those findings. Noting the applicant has consistently maintained he is an Afghan national, the Tribunal finds he is a citizen of Afghanistan which is also his receiving country for the purposes of the refugee and complementary protection assessments.
The applicant’s background and personal profile
As noted above, the applicant was born in Paktia, Afghanistan in [Month, Year]. He is a Sunni Muslim.
His father died on [Date] in Afghanistan. His mother died in [Month, Year] of kidney failure.
His [sister] is married and lives with her family in Afghanistan. Her husband works as [an occupation 2]. He has [brothers] who he claims are missing. He said that prior to going missing they were living in the family home in [Location], Paktia. His brothers were studying before they went missing.
He married in [Year]. His wife is an Afghan citizen. She and their children are in [Pakistan] where they moved in 2021 Pakistan. Prior to that she had been living with his brothers in the family home. He has [children] aged between [Ages]. They are all living in Pakistan but were born in Afghanistan.
The applicant first left Afghanistan in February or March 2008. He went to Pakistan and then [Country 4] by road and on to [Country 5]. He travelled on to [Country 6] when he remained for around 15-20 days then travelled to [Country 3] where he remained ‘for a long time’ until he went to [Country 7] and then on to [Country 2] for 2-3 months. He was later returned to [Country 3] in 2010.
He then travelled back to Pakistan by air in December 2010. He said at this time his family were in Afghanistan. They came to Pakistan sometime later and remained for 3-4 months before he left to travel to Australia.
The Tribunal asked why he travelled to Europe and he said he was seeking protection. He said he travelled to different countries seeking legal papers so he could bring his family. His temporary protection in [Country 3] was for 5 years and would not allow him to bring his family. He went back to Pakistan to see his children. When he left Pakistan his family returned to Afghanistan where they remained until 2021.
He said he applied for protection because he was at risk from the Taliban. He said he had been working for an [NGO], and the Taliban threatened him to put explosives in the car and park near an American base and he refused. He said he started working for the NGO in 2006 ’ in [District], [doing NGO projects]’. He said he was driving the [project workers] and women. He said there was a lady, [Ms B] who was mostly responsible for paying him. He said he got the job through a friend of his father and worked with them until he left Afghanistan.
In his statement in 2013 the applicant stated that he had been driving on a road going to [City] when the Taliban tried to stop him at a roadblock. He tried to speed away and was shot at. He was shot in the [body part] and the car tires were shot out. He said they moved him from one place to another. He eventually escaped and returned to his home and his brother-in-law told him he needed to leave the country.
When the Tribunal asked about this incident at the hearing he said that he said his car had been stopped by the Taliban and they fired on him and he ran from them and they caught him. He said they blindfolded him, tortured and beat him and said they would put explosives in his car. His head was bleeding. He said he agreed to put the explosives in the car but then they brought Koran to him to take an oath and he denied it. He said they held him for 13-14 days. He said the last time they beat him they put him in a room with a small window and he pushed the window and got out. He said he saw a car and got a car to take him home. His uncle said it was dangerous and they would kill him, so he got a friend in Pakistan to help him leave. He said he left Pakistan, around one or two weeks later.
He told the Tribunal he did not report the incident to [NGO] or the authorities but said they found out when they came to ask where he was. When the Tribunal queried why no one had raised that he was missing he said that he had taken the car to get fixed and it was a holiday. The Tribunal notes he said he had been missing for 14 days and he said his brother reported to the authorities, but he didn’t know when that was because he didn’t go back home, he went to his sister’s house.
With respect to other claims, he said his father was in the [Employer 1]. He said when the Taliban was toppled they were told that people who had previously worked in Taliban could come back. His father started this work in 2002. His last job was in Nagarhar province but sometimes he was in Kabul. The applicant claimed his father received death threat letters to stop working with the [Employer 1]. The applicant said the letters were in 2006 or 2007. He did not leave his job. His father was killed on [Date]. He was coming home from work and on the way he was shot in the car. The applicant said he was home at the time he found out.
The applicant said he would be at risk as the Taliban are targeting previous [Occupation 1] and they hate the families of previous [Occupation 1]s.
The applicant claimed that this was the reason his brothers were kidnapped in August 2020. He said the family was home and the Taliban knocked on the door. His brother went to answer it and the other brother followed and they were both taken away. He found out when he called home. The family went to the district office to tell them about the kidnapping and they said the brothers had been taken but they didn’t know where. The Tribunal asked why he thought this was to do with his father, noting it had been some 13 years since threats were made to his father. He said that there was a US army base there but when the US left the Taliban took control of the area.
The applicant said he didn’t tell the Department about his time in Europe because a people smuggler in Afghanistan told him not to tell or he would be deported back to Afghanistan. The Tribunal asked why he had given different dates for things that happened in Afghanistan and he said that the smuggler and the agent told him not to give the correct dates for the same reason.
The Tribunal asked why, if he had withheld the information for fear of being deported, the reports from his counsellor in 2022 and 2023 referred to him leaving Afghanistan in 2012 and make no reference to his having been in Europe. He said he explained to the doctor he had been to Europe. The Tribunal asked why it was not in the report and he said he told the ‘main doctor’ but wasn’t sure if he had told the counsellor. He said the counsellor didn’t ask him about Afghanistan and he wasn’t asked particularly about the dates.
The applicant said the photos of his father showing he was in the [Employer 1] were sent to him by his brother while he was in [Country 9]. The Tribunal asked why his driver’s licence was issued in 2010 if he had left Afghanistan in January 2009. The applicant replied that he obtained it when he was working with [NGO]. He said he obtained the taskeras when he was in [Country 9]. The Tribunal asked why the taskera was dated 2008 if it was obtained when he was in [Country 9] (after 2011) and he said his brother got it from the district office and sent it to [Country 9]. He said he obtained the taskeras when he was going to [Country 2].
The Tribunal queried why the [NGO] Card says “[NGO 2, Country 10]” noting that country information suggested that the [NGO] is the “[Full name, including Country 1]” and made no mention of [Country 10]. The Tribunal also noted [Acronym] was misspelt [Acronym misspelled] on the card. The applicant was unable to explain the reasons for the card issues. The Tribunal noted that absent some verification from [NGO], which the applicant indicates they had been unable to obtain, the Tribunal would have very serious concerns about that document as establishing the applicant had worked for [NGO]. The Tribunal asked the applicant if he had made any efforts to reach out to [NGO] to establish he had worked for them after the delegate rejected his claims. He said that he did not agree with the delegate’s assessment. He said he was illiterate, and he didn’t understand the reasons for the discrepancies.
The Tribunal asked the applicant about the news article titled “A driver of [NGO acronym misspelled] institution has been kidnapped” submitted by the representative with other documents on 23 March 2022. The Tribunal asked where the article came from and he said it was in a Taliban newspaper. He said his sister’s husband saw the article when he escaped from the Taliban and they sent it to him in Europe. When the Tribunal queried the timing of the article, he said that during the time when he ran away or escaped from Taliban that they published the article, but it could have been published earlier. He said his brother-in-law saw the article when the applicant left Pakistan. The Tribunal asked what date the article had been published on and whether his brother-in-law kept a copy of the newspaper that it was in. He said the article was published at the time he escaped. He couldn’t remember when it was published.
The Tribunal also raised a concern about the presentation of the article noting that the typeface spacing was different to the rest of the page and it was not clear where the photo had come from. [NGO] was also misspelt in the headline in both translations of the article which were submitted. These factors might give rise to a concern about whether it is a genuine document.
The Tribunal raised with the applicant that, as noted in the delegate’s decision country information suggested document fraud a was an issue in Afghanistan and that this contributed to concerns regarding aspects of the documents which cast doubt on their genuineness.[2]
[2] DFAT Country Information Report: Afghanistan (27 June 2019) at page 53 (the DFAT 2019 Report).
The Tribunal asked about the letter regarding his brothers, and he said that it had been written by a friend, [Mr C], in Afghanistan. He said he called [Mr C] and asked him to write the letter and he sent it to him. The Tribunal asked how [Mr C] knew what had happened to his brothers and family and he said that he called [Mr C] and explained it to him. The Tribunal asked why the letter said it came from the local council and the applicant said that his family informed the local government when it happened.
The Tribunal noted that initially the applicant provided a private email from [Ms B] regarding his work for [NGO] and asked if he provided an email from a private account for someone claiming to have worked with the applicant and [NGO]. He explained they had been unable to obtain information from [NGO]. The applicant said it was hard to prove.
The Tribunal also noted concerns with some inconsistencies in statements over time, including for example the fact that he had provided a statement in 2017 claiming he had returned to Pakistan following the death of a [child] in [Year], yet his evidence was his [children] were alive. He said that his [child] didn’t die but he had told his previous lawyer that his [child] was very ill.
The Tribunal asked about the relevance of the information regarding Pakistan (news item from Human Rights Watch “Pakistan: Afghans Detained, Face Deportation,” dated 31 October 2023) and the applicant’s representative indicated that the Afghans were all going to be evicted from Pakistan and the applicant’s family unit was likely to be sent back. The applicant said his family will be tortured because of him and that is a risk for him. Later submissions suggested returning the applicant to Pakistan would place him at risk of return to Afghanistan. However, the Tribunal did not consider this to be relevant to its assessment. For the applicant to be returned to Pakistan the Tribunal would need to determine he had a right to enter or reside there. There was no evidence to support such a finding other than his family’s presence in Pakistan. Further, the applicant’s family members were not included as applicants for the protection visa and any risks of harm to them in Pakistan which did not impact the assessment to the harm faced by the applicant was outside the matters being considered by the Tribunal.
The Tribunal put to the applicant country information that suggested [NGO] continued to operate in Afghanistan under the Taliban and that this might suggest he was not at risk for work he previously did for [NGO] in 2006-2007 or if he continued to work for [NGO]. He responded that he was at risk because of his father working in Hellmand province and being killed and the fact that his brothers were still missing.
The Tribunal noted country information suggests that [Employer 1 workers] may be at risk but doesn’t point to retaliatory action against family members. He replied that the Taliban was killing family members. He said he wouldn’t stay there if he was at risk because he is suffering and he can’t sleep.
The Tribunal noted country information suggested the general security situation had improved and it was now safer to move around Afghanistan and he replied that it could be improved for some but that women cannot wear even pants there and they are not showing how many thousands of people they (the Taliban) killed.
Applicant’s mental health
It was submitted that the applicant suffers from Post Traumatic Stress Disorder (PTSD) with associated Generalised Anxiety Disorder and major Depression. These were supported by the reports of [Dr D] from [Organisation]. [Dr D] also observed the applicant was presenting with ‘the well-recognised clinical condition of Demoralization Syndrome. He is receiving trauma focused counselling and anti-depressant medication.
The reports from [Organisation] support the determination of the application to assist in relieving uncertainty associated with the applicant’s visa status with a view to reducing the stressors contributing to a deterioration in his mental health.
The Tribunal notes the [Organisation] reports did not suggest the applicant would be unable to engage with the Tribunal in relation to the review, including at hearings, and the Tribunal assessed he was able to do so, noting he also had the assistance of legal representatives and an interpreter.
As raised with the applicant at the hearing, the Tribunal was concerned that the account of the applicant’s history contained in the [Organisation] reports suggested the applicant had maintained his version of events which did not include his time in Europe. It was suggested that this was because [Organisation] had relied on the 2013 statutory declaration of the applicant, though it is unclear why [Organisation] would have been provided with the 2013 declaration rather than the 2017 amended declaration (or the subsequent statements). The Tribunal remains concerned that these discrepancies were consistent with the applicant’s sustained history of providing false accounts of events associated with his departure from Afghanistan which caused the Tribunal to have concerns about the credibility of some of those claims.
However, the Tribunal did not regard those matters to be central to the [Organisation] assessment which is focussed on the applicant’s current presentation and the deterioration caused by his imprisonment in [Country 9], the uncertainty of his status and separation from his family for whom he has increasing concerns regarding their safety in Pakistan. As such the Tribunal does not regard those matters as undermining the [Organisation] reports.
The applicant did not make claim to face a risk of persecution on the basis of his mental health on return to Afghanistan, however the Tribunal accepts this forms part of his personal profile.
Assessment of evidence and claims
The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3]
[3] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]–[70] per Nicholls J.

The courts have made it clear that it is important that the Tribunal be sensitive to the difficulties faced by asylum seekers and that it adopt a reasonable approach in making its findings of credibility.[4] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5]
[4] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347; Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445; Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220.
[7] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[8] In this regard, the Tribunal is guided by the court’s consideration of how credibility findings might be affected by legal unreasonableness.[9]
[8] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[9] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
While noting the applicant has had documented issues with his mental health and acknowledging the passage of time since the claimed events in Afghanistan occurred, the Tribunal has significant concerns about the credibility of the applicant’s claims. There were inconsistencies in aspects of his core claims in relation to events which occurred in Afghanistan which had occurred over the course of seeking protection including with respect to his migration history and the timing and details of events said to have occurred in Afghanistan. The applicant conceded significant incorrect information had been provided in his initial application for protection and in statements supporting his claims however this occurred after detailed information obtained from other sources had been put to the applicant for comment by the Department.
In addition, in the Tribunal’s view there were significant issues with documentary evidence submitted in support of the application including his [NGO] employee card, taskeras, the purported village council letter and the newspaper article containing details of his claimed kidnapping by the Taliban.
The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence. The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events. However, the Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to provide corroborating evidence where, in the Tribunal’s view, it is reasonable to expect it would have been possible for the applicant to provide it, including with respect to his claimed role with [NGO] and the claimed kidnapping of his brothers.
The Tribunal found the inconsistencies or vague evidence, including in relation to key events relating to the claims, could not be explained merely by the passage of time, poor recollection or the applicant’s mental health issues as described in the material available to the Tribunal. As acknowledged in submissions, the applicant has changed his claims repeatedly and in the Tribunal’s assessment has failed to provide credible evidence to corroborate claims over the course of his engagement with the Department and Tribunal.
His initial claims, made on his arrival in Australia, were not impacted by the passage of time but contained information which the applicant accepts is false and was designed to achieve a positive visa outcome for himself and his family members and to avoid deportation. While this was acknowledged in his amended statement in 2017, it creates significant issues with accepting his claims to fear harm on return for reasons which have not been substantiated, or which have been added late in the process of his engagement with immigration authorities relation to which his evidence has been inconsistent and changed over time.
In addition, while the applicant accepted he had not given a true account of his history in Afghanistan, he continued to provide information in statutory declarations which he now accepts was false, including that he returned to Pakistan because one of his children had died. In addition, he had attempted to explain the provision of incorrect dates on translation issues and continued to provide false accounts of his history to mental health practitioners.
While the applicant claims these were errors in process (with respect to the mental health reports) or judgement driven by a compulsion to secure a migration outcome for his family members (with respect to the false narrative of departure), the Tribunal considers these factors caused significant issues for the applicant’s credibility and mean the applicant is afforded little in the way of the benefit of doubt.
Notwithstanding these concerns with some of the applicant’s core claims the Tribunal accepts the following aspects of the applicant’s profile:
·The applicant is a Sunni Muslim from Paktia, Afghanistan;
·The applicant is married and has a wife and [children] living as refugees in Pakistan;
·The applicant has a history of mental health issues including PTSD, depression and anxiety;
·The applicant has lived outside Afghanistan for a significant period and would be considered a failed asylum seeker returning from a Western country if returned to Afghanistan.
On balance, the Tribunal also accepts, on the basis that it is plausible, that the applicant drove a car for [Ms B] for a period in 2006-2007 while she was working for [an NGO] operating in Afghanistan. For reasons outlined below, the Tribunal does not accept he worked for [NGO] or that he is at risk of harm on return to Afghanistan on that basis. Further, having regard to credibility concerns with the applicant’s account of events in Afghanistan and with documents offered in support of those events, the Tribunal does not accept that the applicant was kidnapped by the Taliban as a result of working for [NGO].
The Tribunal also accepts on balance and for the reasons expressed below that the applicant’s father was a member of the [Employer 1] supporting coalition forces in Afghanistan. The Tribunal accepts, on the basis that it is plausible, that the applicant’s father was killed by the Taliban in December 2007 as a result of his role with the [Employer 1].
While the Tribunal is unable to accept some of the applicant’s core claims, the Tribunal is satisfied that the cumulative aspects of his profile which the Tribunal does accept place the applicant at risk of harm on return to Afghanistan for the reasons detailed below.
Prevailing circumstances in Afghanistan
There have been significant changes in Afghanistan since the applicant left in 2008.[10] In August 2021, Afghanistan fell to the Taliban. Coalition forces withdrew from Afghanistan on 31 August 2021.[11] Over the summer months of 2021 the Taliban swept through Afghanistan taking control of several districts including the northern provinces and districts surrounding the provincial capitals. The Taliban declared the creation of the Islamic Emirate of Afghanistan (IEA) and their intention to form a new government. Although levels of armed violence dropped immediately after August 2021, compared to previous years of conflict, there has been an increase in security-related incidents since August 2022. Crime levels have increased in the face of the deteriorating humanitarian and economic situation, and the security situation is evolving. The Taliban rule has been marked by repression of all forms of opposition, and their implementation of a strict interpretation of sharia.[12]
[10] In addition to the DFAT Reports and material submitted by the applicant, the Tribunal has drawn on country information assessments included in recent Tribunal decisions: Refugee (1837641) (4 June 2024) (SM Pennell); 1933200 (Refugee) [2024] AATA 1205 (29 February 2024) (M Wilson).
[11]Taliban are back - what next for Afghanistan? - BBC News
[12] DFAT Thematic Report on Political and Security Developments in Afghanistan, 14 January 2022 (DFAT 2022 Thematic Report); EUAA, Afghanistan Country Focus, December 2023.
In 2021 the Taliban declared an amnesty for those who had fought against them. Prior to August 2021 the Taliban had openly targeted Afghans of all ethnicities associated with the government or the international community. The amnesty was issued in recognition that they were ill-prepared to run a government and needed people with experience. According to reports, and consistent with the applicant’s evidence, the Taliban respect for the amnesty has been uneven with some violence having occurred reportedly because of local vendettas.^[13] In addition, it’s reported that some Taliban forces had targeted members of the Afghan government security forces who they consider not being able to be recruited to the Taliban cause. These include Special Forces soldiers and members of the National Directorate of Security, members of the National Defence Security Force (NDS) and those who aided foreign forces.[14] This is consistent with country information submitted by the applicant.[15]
[13] Ibid.
[14] Ibid.
[15] >
As a result, DFAT assess that there is a high risk that former Afghan security forces especially special forces and NDS personnel will be subject to violence in Afghanistan. Also, those who were critical of the Taliban or harmful to their interest (judges/police) are at risk of unwanted attention, harassment, and violence. However, it’s reported that due to the Taliban’s desire to establish a functioning government, ordinary and/or technical government officials are assessed at a low risk of adverse attention from the Taliban.^[16] In addition there have been reports of family members of former security officers being targeted directly or harmed as a result of attacks on former military personal. This included forced disappearances, detention and beaten.[17]
[16] DFAT 2022 Thematic Report at pp 17-18.
[17] EUAA, Afghanistan Country Focus, December 2023 at 4.1.5; >
The UN Special Rapporteur reported in February 2023 that the human rights situation in Afghanistan had worsened since the previous report a year earlier. The report noted serious challenges to the rule of law and credible reports of suppression and extrajudicial executions and torture. The report expressed serious concerns regarding the ongoing targeted and revenge killings of former Afghan National Defence and Security Forces and prosecutors serving with the former government, despite the amnesty. The report also raised concerns regarding a climate of impunity and continued failure to hold officials and commanders accountable for serious violations of international human rights and humanitarian law, a trend that preceded the Taliban regime and has continued.[18]
[18] Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, 9 February 2023.
Landinfo reported in 2022, that there is little information regarding the situation in Afghanistan for returnees perceived as westernised as there had been no forced returns from Western countries since the Taliban takeover.[19] Country information indicates that after their takeover of Afghanistan, the Taliban announced that they intended to act based on their principles, religion and culture, and are implementing Sharia law. Those leaving for westernised countries such as Europe or the US are viewed with suspicion and ‘good Muslims’ would not leave and those that did were not ‘good enough Muslims’.[20]
[19] Landinfo, Afghanistan: Departures and returns after Taliban’s takeover of power. 29 September 2022.
[20] EASO Afghanistan Country Focus, Country of Origin Report January 2022; EASO Country of Origin Information Report: Afghanistan Security situation (January 2022) - Afghanistan | ReliefWeb at 2.11 and at pp 15, 23,
The European Union Agency for Asylum (EUAA) reported in December 2023 that senior Taliban officials called upon Afghans to stay in Afghanistan and have created obstacles for people wanting to leave. EUAA reported there is no information available of individuals being deported or returned from the European Union since the Taliban takeover. Western states have halted deportations to Afghanistan and the International Organisation for Migration (IOM) has suspended activities facilitating or accompanying returns to Afghanistan. Regarding the treatment of ‘westernised’ Afghans, the Taliban have stated an aim to ‘purify’ Afghan society and eject foreign influence from the country. The Taliban have issued instructions against trimming beards or wearing Western-style clothing, and have invested vast resources in building mosques and madrassas across Afghanistan. Their assault on Western style education is also part of the project to ‘purify’ Afghan society. Whilst the lack of returnees from Europe means it is not possible to comment on how such individuals may be treated, previous failed asylum seeker returned from Europe were said to have faced suspicion and questions as to what extent they had been ‘contaminated’ by Western ways.[21]
[21] EUAA, Afghanistan Country Focus, December 2023; Country of Origin Information: Afghanistan - Country Focus (europa.eu)
With respect to returnees including those who have sought asylum in the West, the Office of the Commission General for Refugees and Stateless Persons Belgium (CEDOCA) reported in December 2023 that:
According to [the Dutch Country Report on Afghanistan], it is not clear whether factors such as whether or not the person has left Afghanistan illegally, the ethnicity of the person returning, any residence in Europe or another Western country or in one of the neighbouring countries (such as Iran and Pakistan) play a role in whether or not problems would be experienced when returning to Afghanistan or would manifest in a difference in treatment when returning to Afghanistan.
One source, cited in the 2023 Dutch Country Report on Afghanistan, stated that there was no reliable information available on the treatment by the Taliban of people voluntarily returning to Afghanistan. The information on this is described as limited and anecdotal. Other sources cited in this report state that they are not aware of any problems or difficulties with the de facto authorities in returning registered or undocumented refugees from neighbouring countries. According to another source cited in this report, there is always a chance, but not necessarily in each individual case, of problems in returning for people who left as economic refugees. Prominent individuals with certain profiles (such as former ANDSF personnel, for example) or people who already had certain problems before leaving Afghanistan could face retaliation upon their return. The source did not speak of any consistently occurring problems,but did state that such problems can never be ruled out. The same source claimed that no information was available on the treatment by the de facto Taliban authorities of people who are forced to return from a European or Western country, as there are hardly any such cases known.
According to a Freedom House report published in January 2023, in terms of the profile of human rights defenders, the Taliban would consider certain factors such as having received a Western education, having worked for a Western organisation, wearing Western-style clothing and speaking English as indicators of association with the “enemy”.[22]
[22] Office of the Commission General for Refugees and Stateless Persons (Belgium), CEDOCA, Migration movements of Afghans since the Taliban takeover of power, 14 December 2023.
The International Office of Migration (IOM) has reportedly suspended assistance for voluntary returns to Afghanistan because in their assessment there is ‘no safe environment for return’. IOM also anticipated the conditions that led to this assessment will remain unchanged for the foreseeable future and will likely deteriorate further due to the multi-layered crisis in Afghanistan. Other sources told the CEDOCA that people who oppose the Taliban are considered ‘instruments of Western influence’ will be seen as a problem upon return to Afghanistan. Afghans who sought asylum in Western countries are perceived by the Taliban to have discredited them.[23]
[23] Ibid.
The CEDOCA also referred to comments by an academic specialising in Afghanistan at a Danish Refugee Council conference on the situation in Afghanistan since 2021:
Not everyone who left Afghanistan is at the same risk upon return. [The academic] knows of people who go back for various reasons, such as family visits or business/professional reasons, and that this is possible, that these people do not have any problems in doing so. According to Schuster [the academic referred to], there is a difference between people who return voluntarily and those who are forced to return. The latter group, she said, would be at greater risk. In relation to this, Schuster indicated that there may be a negative perception towards people who left Afghanistan, sought asylum in a Western country and were then later sent back to Afghanistan. She claimed to know of cases where these returnees were viewed with suspicion and stigmatised due to the assumption that they may have been “contaminated” by Western influences during their stay in a European or other Western country. … The most difficult thing about Afghanistan is the great uncertainty that exists in many respects. Among other things, she referred to the possible differences in interpretation of the rules by different Taliban members. This makes it difficult to find reliable information about what is really happening on the ground. [24]
Claims as a result of working for [NGO]
[24] Ibid.
The applicant claimed that he was at risk as a former employee of [an NGO] operating in Afghanistan. He claimed he worked as a driver for the NGO in 2006-2007.

100. The applicant claimed he had been kidnapped prior to leaving Afghanistan in an attempt to force him to park his car with explosives in a US military carpark. He initially claimed to have been shot in the [body part] and held for 14 days before escaping. In later accounts he was captured and beaten and held for that period before escaping.
101. As noted above, the Tribunal does not accept these claims due to general credibility concerns over the applicant’s claims and evidence offered in support of the application over time and due to specific concerns about the [NGO] claims.
102. Firstly, the Tribunal had significant concerns about the documentation offered to support the claims the applicant had been an employee of [NGO] and had been kidnapped due to that role. The employment card for ‘[NGO]’ had a number of issues which, in light of concerning the prevalence of fraud in Afghanistan, raised with the applicant at the hearing, caused the Tribunal not to accept the evidence was genuine. These concerns included that the card referred to [NGO 2, Country 10] which there was no information to suggest was associated with or part of [NGO]. Further the applicant was unable to offer any confirmation from [NGO] or any other documents verifying his employment. This was a concern as country information suggests [NGO] continues to operate, including on the ground in Afghanistan, and because [Ms B] produced a number of documents verifying her employment with [NGO], suggesting such records exist for the organisation. While the applicant submitted evidence of having approached [NGO] for records following the second hearing none were submitted and there was no satisfactory explanation as to why efforts to obtain records had not been made early, in particular noting the delegate did not accept the applications claims.
103. Giving the applicant the benefit of the doubt, and noting [Ms B]’s evidence, the Tribunal is prepared to accept the applicant drove [Ms B] for a period while she was working for [NGO]. However, the Tribunal does not accept that he did so as an employee of [NGO], noting [Ms B]’s description of his role as working with [NGO] as her driver.
104. While [Ms B] indicates she was ‘aware of an incident where he was abducted by armed men’ she provides no further detail and while she mentions the applicant left Afghanistan because of a ‘political problem’ she does not link this to [NGO]. As noted above the Tribunal had significant concerns regarding the evidence of the claimed kidnapping. Firstly, the applicant provided inconsistent accounts of when this occurred (initially claiming it was in 2011). He also provided inconsistent accounts of the harm he suffered claiming at one point he was shot in the [body part] and later that he was captured and beaten. In addition, the Tribunal found his account of what happened during and as a result of the kidnapping to be implausible and inconsistent. For example, he was unable to say whether or when the authorities were notified of his disappearance or whether [NGO] was aware. He also claimed initially that when he got home his brother-in-law told him to leave the country and later said it was his uncle. In this regard the Tribunal found the applicant’s evidence regarding what happened after his claimed release to be vague and contradictory noting he claimed to have hidden from the Taliban at his sister’s home before departing Afghanistan but also to have been at his parents’ home when his father’s death was reported to the family in December 2007.
105. Further, while he offered an article which he claimed was from a Taliban newspaper reporting his kidnapping, he claimed his brother-in-law saw this after he left Afghanistan, which was some time after he escaped. No explanation for why the article would have appeared at that time was given. The article itself was undated and had features causing concerns about its authenticity including a typeface and spacing which was not consistent with other articles appearing on the same page excerpt given to the Tribunal.
106. Having regard to all the evidence and the credibility concerns regarding information provided by the applicant over time, the Tribunal does not accept he was kidnapped due to his work with [NGO].
107. In any event, noting [NGO] continues to work in Afghanistan under the Taliban the Tribunal does not accept there is any real risk the applicant would be targeted as a former employee of [NGO] on return to Afghanistan for any reason.
Fear of harm as a family member of a former [Occupation 1] assisting coalition forces
108. The applicant claimed to be at risk due to his father’s role as [an Occupation 1] and his murder in [Year] while travelling home from work. The applicant claimed his father was with a branch of the Mujahideen called [Branch] and he fought against the Russian army. After this he joined the Taliban, because the Taliban came to the village and forced recruits to join them. After that, when the Karzai government came to power, the government encouraged anyone who wanted to work with the government to join them. At the time, the Taliban had lost their power. The applicant’s father decided to join the new government and became [an Occupation 1] as he wanted to rebuild the country. He also claimed that his brothers were both arrested or kidnapped in 2020 by the Taliban due to the family’s profile as that of a former [Occupation 1].
109. While the Tribunal had general credibility concerns about the applicant’s claims, it accepts these claims regarding his father’s involvement in the [Employer 1] are plausible having regard to country information and additional evidence of his father’s [work] The Tribunal accepts on the basis it is plausible that his father was killed during his [work], noting his profile as [an employee], and a member of the former Taliban forces, would have made him a target for Taliban forces and insurgents.
110. The disappearance of the applicant’s brothers is more problematic. Evidence offered in support of those claims was a letter purportedly from the village council (including bearing a purported seal of the council). The applicant admitted to the Tribunal that this evidence was written by a friend in Afghanistan on his request and based on his report of the events. Further it contained errors including that the applicant’s family were sheltering in Kabul when the applicant said they had never travelled there but had gone to Afghanistan. The Tribunal does not accept the letter is from the village council and places no weight on it as evidence of the applicant’s brother’s’ alleged disappearance.
111. However, the Tribunal does accept on the basis it is plausible that the applicant’s brothers disappeared having been taken from the family home by Taliban forces. The timing of that claimed event coincides with the surge of the Taliban in Afghanistan, and noting reports that young Afghans were, sometimes forcibly recruited by the Taliban as it fought to secure control of Afghanistan and force the withdrawal of coalition forces.
112. While the Tribunal accepts the brothers may have disappeared, the Tribunal is not satisfied there is evidence to link their disappearance to the family’s profile due to their father’s [work] and death. Available country information suggests that [specified people] may be at risk from the Taliban not withstanding public declarations of an amnesty of forgiveness. However, it is less clear that risk is extended to members of the families of former [Occupation 1]s, particularly in circumstances where the member of the family who [worked] in the former government’s [Employer 1] was killed more than a decade ago. While country information does not rule out attacks against family members, the Tribunal considers the applicant does not face a real risk of persecution on this basis alone.
Claims as a returnee from the West and failed asylum seeker
113. As noted above, country information regarding the situation of returnees from the West in Afghanistan is ambiguous.
114. Noting the length of time the applicant has been absent from Afghanistan the Tribunal accepts he would be so identified. The Tribunal considers there is a risk associated with such identification that the applicant would have actual or imputed political beliefs which are anti-Taliban or pro-Western. The Tribunal notes this risk also includes harm from ISIL-KP who despite a decrease in activity due to Taliban enforcement activities, continue to execute attacks including on Shia Muslims and on those identified as being associated with the West.[25]
115. As the country information above makes clear, there is a lack of information regarding the risks for returning failed asylum seekers form Western countries, because since the Taliban takeover there have been so few returning from the West. The UNHCR’s most recent Guidance Note on Afghanistan stated that the UNHCR:
Calls on decision-makers to give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[26]
[25] Australian recounts deadly IS attack on tour group in Afghanistan | SBS News; Instability in Afghanistan | Global Conflict Tracker (cfr.org)
[26] UNHCR, Guidance Note on Afghanistan – Update 1, February 2023

116. In this respect the Tribunal also notes the applicant’s history of mental health issues. While it was not suggested the applicant faced persecution for that reason, the Tribunal considers that there is a real chance his mental health would be impacted on return to Afghanistan and that this would place him at an elevated risk of persecution as a returnee from the West noting that it may impede his capacity to function and reintegrate in Afghanistan in a manner which may otherwise reduce the risk of identification and persecution by agents of harm.
117. Noting the concerns raised by the UNHCR and having regard to the cumulative aspects of the applicant’s profile the Tribunal is unable to reach the requite level of confidence that the applicant would not face a real risk of persecution on return to Afghanistan for reasons of his real or imputed political opinion as a returnee from the West and as the member of a family of a former [specified Occupation 1] and having regard to his personal profile.
PROTECTION ASSESSMENT
118. Having considered the applicant’s claims individually and cumulatively, the Tribunal has considered what will happen if the applicant were to return to Afghanistan, now or in the reasonably foreseeable future.
119. The Tribunal accepts that the applicant’s home area is Paktia Province. The Tribunal accepts he has extended family there including his sister. However, his own family is in Pakistan. The Tribunal finds based on the applicant’s evidence, he would settle in Paktia.
120. While the Tribunal does not accept some aspects of the applicant’s claims, based on the evidence and country information, the Tribunal finds that there is a real chance that the applicant would be subjected to harm now and in the reasonably foreseeable future on return to Afghanistan on the basis of his real or imputed political beliefs as a member of a particular social group, of family members of former [specified Occupation 1]s. .
121. The Tribunal finds that there is a real chance, that is, one that is not remote or far-fetched, that if the applicant returns now or in the reasonably foreseeable future to Afghanistan, he will face serious harm amounting to persecution from the Taliban government or ISIL-KP for these reasons. The Tribunal accepts that the fact that applicant would be identifiable as someone who has spent significant time outside Afghanistan, including in the West, would increase the likelihood of him being subjected to harm in Paktia province.
122. For the reasons outlined above and having regard to the country information concerning the situation for persons with the applicant’s profile, the Tribunal accepts that should the applicant return to Afghanistan, now or in the foreseeable future, there is a real chance he will face serious harm from Taliban authorities or ISIL-KP in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist: s 91R(1)(b). The Tribunal finds that the harm faced amounts to serious harm including mistreatment, harassment or torture by the Taliban or ISIL-KP.
123. Having regard to the applicant’s cumulative adverse profile, the Tribunal finds the applicant’s real or imputed political opinion and membership of a particular social group are the essential and significant reason for the persecution which the applicant fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves his selective harassment for those reasons.
124. The Tribunal notes that individuals seeking protection are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.[27] In this case, the Tribunal is satisfied that the modification would require the applicant to alter his personal history or political opinions which cannot be expected of him.
[27] Appellant S395/2002 v MIMA (2003) 216 CLR 473
125. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution.[28] Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection.[29] In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards.[30]
126. In light of developments in Afghanistan, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution that he fears. The Tribunal does not regard that such areas offer protection now or in the reasonably foreseeable future having regard to uncertainty associated with the Taliban agenda with respect to returnees and people associated with former coalition forces (and their families) and the Taliban’s level of control of Afghanistan, particular with respect to extremist groups.
127. Since the Taliban administration is now controlling Afghanistan and is one of the agents responsible for the persecution that the applicant fears, the Tribunal is not satisfied that the Afghani state will take reasonable measures to protect him by reference to international standards.
128. For the same reasons, the Tribunal is not satisfied that there is any part of Afghanistan in which he would be safe from the persecution. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.[31] Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in their country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense.[32]
129. As the applicant has a well-founded fear of persecution from the Taliban and from extremist organisations including ISIL-KP which continue to operate in some areas of Afghanistan. The extent of Taliban control over extremist organisations in the country remains uncertain, at least for the foreseeable future and country information suggests some extremist activities are tolerated or supported by the Taliban. The Tribunal is satisfied the applicant has a well-founded fear of persecution in all areas of Afghanistan.
130. Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of Art 1A(2). In considering whether he comes within the definition of a refugee contained in the Convention, the Tribunal accepts that the applicant is outside the country of his nationality or former country of habitual residence and unable or, owing to the fear of persecution, is unwilling to return to it.
131. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
[28] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].
[29] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28].
[30] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].
[31] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.
[32] SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Third country protection

Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.

133. As noted above, the delegate accepted that the applicant was an Afghan citizen and that he did not have a right of return with respect to either [Country 3], where he was granted temporary protection status in November 2010 or in Pakistan where his family live as refugees. There is no information before the Tribunal that would lead it to depart from those findings.
134. The Tribunal finds the applicant does not have a right to enter and reside in any third country.

135. For the reasons given above, the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
136. There is no evidence before the Tribunal that any other exclusions apply to the applicant.
CONCLUSION
137. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
138. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Simone Burford
Senior Member