1821283 (Refugee)

The matter concerned an application for a protection visa by Mr [A], an individual who identified as an ethnic Hazara and a Shi’a Muslim from Afghanistan. The dispute before the court was whether Mr [A] met the criteria for a protection visa, specifically under section 36(2)(a) of the Migration Act 1958 (Cth), which relates to Australia's obligations under the Refugees Convention.

The court was required to determine whether Mr [A] had a well-founded fear of being persecuted for reasons of his race and religion, which would render him a refugee under Article 1A(2) of the Refugees Convention. This involved assessing the credibility of his claims, the current country situation for Shi’a Hazaras in Afghanistan, and whether relocation within Afghanistan, such as to Kabul, would be a practical and reasonable alternative to protection in Australia. The court also considered whether Mr [A] had a right to enter and reside in a third country, which could potentially exclude him from the protection visa criteria under section 36(3) of the Act.

The court found that Mr [A] was an ethnic Hazara and a Shi’a Muslim national of Afghanistan. While acknowledging past concerns regarding the credibility of some of his specific claims and the previously-constituted Tribunal's finding that relocation to Kabul might be a viable option, the present court was satisfied that Mr [A] did not have a right to enter and reside in any third country. The court accepted that Mr [A] was not caught by section 36(3) of the Act and, based on the evidence before it, concluded that Mr [A] satisfied the criterion under section 36(2)(a).

The matter was remitted for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.